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THE 

SETTLEMENT   LAWS    OF 
MASSACHUSETTS 


IN  THEIR  APPLICATION  TO   POOR  RELIEF 
OUTSIDE  INSTITUTIONS 


WITH  CITATION  OF  SOME  OF  THE  LEADING  JUDICIAL  DECISIONS  IN 

THE  LAST  THIRTY  YEARS,  AND  PRACTICAL  SUGGESTIONS 

TO  VISITORS  AMONG  THE  POOR 


By  HENRY  SHAW,  M.D. 

Ex-Settlement  Clerk  and  Visitor  for  Overseers  of  the  Poor  in  the  City  of  Boston 
Member  of  Massachusetts  Relief  Association 


BOSTON 

George  H.  Ellis,  272  Congress  Street 

1900 


COPYRIGHT 

1899 

BY    HENRY    SHAW,  M.D. 


ttVto 

'6" 


SOCIAL 
WELFARE 
UBRAKY 


INTRODUCTION 


In  closing  an  account  of  the  Public  Charities  of  Massa- 
chusetts, printed  by  the  Commonwealth  for  use  at  the  Cen- 
tennial Exposition  of  1876,  and  covering  the  whole  period 
of  our  existence  as  an  organized  community,  I  had  occasion 
to  say  that  "it  is  the  whole  people  of  Massachusetts, 
rather  than  any  personages,  however  powerful,  gifted,  or 
generous,  who  have  created,  and  do  now  sustain,  the  great 
fabric  of  our  charities."  And  I  went  on  to  add  that  "  in 
the  broad  philanthropy,  the  kindly  and  shrewd  intelli- 
gence, the  deep  sympathies,  the  plain  good  sense,  the 
practical  Christianity  of  this  people,  will  be  found  the 
moving  cause  of  all  that  has  been  done  to  relieve  suffering 
and  to  elevate  mankind  in  our  Commonwealth."  True 
then,  these  remarks  are  no  less  true  now.  They  were 
called  out  by  a  long  and  close  observation  of  the  statutes 
of  Massachusetts  for  the  relief  of  the  poor,  and  an  ac- 
quaintance (now  much  more  extensive)  with  the  Over- 
seers of  the  Poor,  and  those  others,  official  or  private 
persons,  and  many  of  them  women,  who  administered  our 
statutes  or  supplied  the  deficiency  of  laws  by  private  be- 
nevolence, and  what  the  Church  emphatically  calls  "good 
works."  Among  all  these  persons,  numbering  thousands 
during  the  period  of  thirty-six  years  since  I  began  as  a 
State  official  to  study  and  direct  public  charity,  I  have 
known  none  more  faithful  in  his  varied  duties  or  more 
competent  from  his  character  and  experience  to  set  forth 
in  a  concise  Manual  the  present  Poor  Law  of  Massachu- 
setts, interpreted  by  its  indwelling  spirit,  than  Dr.  Henry 
Shaw,  the  author  of  the  following  pages. 


M900184 


IV  INTRODUCTION 

It  is  much  for  the  administrator  of  our  complicated 
system,  especially  if  he  deals  directly  with  the  poor,  the 
unfortunate,  and  the  vicious,  to  have  had  a  medical  educa- 
tion and  the  various  and  pathetic  experiences  of  a  country 
doctor.  Much  of  the  public  poverty  comes  from  disease, 
direct  or  indirect,  and  is  to  be  met  and  relieved —  or  denied 
relief — in  the  plain,  familiar  way  of  the  good  physician. 
Dr.  Shaw  had  this  qualification  for  his  official  task  ;  and  his 
service  for  years  in  the  United  States  Navy  added  to  his 
opportunities  and  increased  his  usefulness.  To  this  were 
joined  a  penetrating  and  inquisitive  mind,  a  memory 
vastly  retentive  of  details  as  well  as  of  principles,  and 
a  sympathy  with  human  infirmities,  without  which  the 
visitor  among  the  poor  might  almost  as  well  be  made  of 
wood  and  leather  as  of  flesh  and  blood.  To  these  traits, 
in  their  combination,  is  due  that  singular  appreciation  of 
the  law  and  the  fact,  the  aim  and  the  means,  which  I  am 
sure  the  attentive  reader  will  find  in  this  book,  and  which 
gives  it  both  a  practical  value  and  a  moral  interest. 

It  is  often  alleged  against  our  perplexed  labyrinth  of 
poor  laws  and  settlement  cases  that  they  are  too  difficult 
of  comprehension,  too  infinite  in  detail  ;  and  a  cry  is 
heard  every  now  and  then:  "Away  with  them!  Why 
cumber  they  the  ground  ?  "  But  they  do  not  cumber  the 
ground,  or  anything  else  but  the  unfaithful  or  incom- 
petent official.  Their  intricacy  is  one  of  their  merits  ;  for 
it  prevents  that  easy  disposal  of  a  case,  with  no  real 
knowledge  of  its  nature,  which  opens  the  door  to  every 
sort  of  abuse  in  dealing  with  pauperism.  Under  our 
system  of  pauper  genealogies  and  marital  dependences 
and  legal  surprises,  it  becomes  usefully  impossible  to  speak 
of  the  "  annals  of  the  poor  "  as  "  short  and  simple  "  :  they 
stretch  out  unto  children's  children  and  remote  genera- 
tions, and  it  is  only  when  we  understand  the  relationships 
of  each  case  that  we  can  properly  apply  the  public  or  the 


INTRODUCTION  V 

private  remedy.  The  traditional  Irishman,  who  thought  he 
could  play  the  fiddle  because  "it  looks  aisy,"  is  the  type  of 
the  Overseer  of  the  Poor  who  expects  to  dispose  off-hand 
of  the  thousand-and-one  conditions  which  make  up  the 
sum  of  pauperism  in  a  single  instance.  "In  the  time  of 
adversity  consider"  is  a  good  scripture.  The  adversity 
of  the  poor  family  is  to  be  very  seriously  considered,  if 
you  are  not  to  do  more  harm  than  good  by  your  action. 
The  intricacies  of  our  pauper  law,  which  recent  amend- 
ments seem  to  have  increased,  make  close  consideration 
of  each  case  absolutely  needful ;  and  this  is  a  merit,  not  a 
defect. 

But  the  more  streets  and  alleys  a  town  has,  the  more 
need  of  maps  and  guide-boards  ;  and  it  is  precisely  this 
service  which  Dr.  Shaw's  Manual  will  render.  The  in- 
structed (of  whom  in  former  years  I  might  pass  for  one) 
will  find  that  it  goes  beyond  their  heap  of  knowledge;  and 
the  uninstructed  (of  whom  many  come  into  official  activity 
each  year,  unless  things  have  changed)  will  find  its  mani- 
fold information  indispensable.  And,  in  reading  it,  I 
learned  that  a  subject  in  itself  technical  can  be  made 
deeply  interesting  by  the  manner  of  treating  it. 

F.  B.  Sanborn. 
Concord,  Mass.,  Oct.  10,  1899. 


PREFACE. 


It  is  now  more  than  thirty  years  since  the  Hon.  George 
S.  Hale  compiled  for  the  Overseers  of  the  Poor  of  Boston 
the  invaluable  manual  which  contained  the  history  of  the 
Massachusetts  Settlement  Law,  for  the  years  before  1866, 
with  citations  of  decisions  explaining  the  different  stat- 
utes, and  some  comment  on  the  historical  relation  of  the 
succeeding  enactments. 

Since  that  time,  with  the  exception  of  a  new  edition  of 
Crocker's  Notes  on  the  Statutes,  the  compact  and  impor- 
tant manuals  printed  by  the  Board  of  State  Charities,  and 
more  than  one  summarized  statement  of  the  gist  of  the 
Statutes  pertaining  to  Settlement,  issued  for  the  guidance 
of  visitors  in  the  Associated  Charities,  there  has  been 
little  published  in  collected  form  that  will  aid  the  student 
who  wishes  to  learn  the  course  and  development  of  recent 
legislation. 

For  these  details  he  must  search  the  annual  blue  books, 
the  reports  of  decisions,  the  manuals  of  the  Board  of 
State  Charities,  and  the  appendices  of  the  annual  reports 
of  some  of  the  larger  cities,  in  all  of  which  places  he  will 
find,  in  fragmentary  form,  the  most  valuable  material. 

When  we  remember  that,  in  this  period  of  one  genera- 
tion of  men,  there  has  been  enacted  more  evolutionary 
legislation  relative  to  settlements  than  in  the  two  hundred 
preceding  years,  the  necessity  of  gathering  in  all  this 
scattered  material  and  arranging  it  into  some  order  and 
sequence  must  be  plain  to  all ;  and  it  is  much  to  be  wished 
that  some  lawyer,  with  the  experience  and  training  of 
Mr.  Hale,  would  prepare  a  work  that  should  be  a  proper 
supplement  to  his  book. 


Vlll  PREFACE 

But  the  pecuniary  inducement  for  such  a  labor  is  of  the 
smallest ;  and,  if  one  properly  equipped  for  the  service 
were  to  do  it,  he  would  have  to  seek  for  his  compensation 
where  all  the  voluntary  workers  in  fields  of  charity  look, — 
to  rewards  that  do  not  increase  the  bank  account. 

To  the  preparation  of  a  complete  work  of  this  nature, 
this  book  would  be  a  great  help  ;  but  it  does  not  claim  to 
supply  its  place.  Composed  and  arranged,  as  it  has  been, 
in  half-hours  snatched  from  engrossing  occupation,  it 
would  be  strange  if  the  careful  reader  should  not  see, 
here  and  there,  evidences  of  that  fact. 

Scattered  through  the  work,  the  reader  will  find  guesses 
and  opinions  hazarded  upon  the  subjects  under  discus- 
sion, which  are  to  have  no  more  force  in  his  mind,  when 
unaccompanied  by  citation  of  authority,  than  his  own 
good  sense  gives  to  them  ;  and  it  is  proper  to  add  here 
that  no  man  or  body  of  men  is  in  any  degree  responsible 
for  any  opinion  advanced,  save  the  author  only.  But  he 
cannot  deny  to  himself  the  privilege  of  returning  his 
heartfelt  thanks  to  the  anonymous  friend  who  has  con- 
stantly aided  him  with  counsel  and  direction  in  technical 
points  ;  and  regrets  that  he  cannot  print  here  a  name 
that  would  cause  his  readers  to  join  in  the  acknowledg- 
ment and  to  testify  to  its  value. 

Persons  who  look  on  from  the  outside  are  wont  to 
speak  of  these  investigations  as  dry  and  uninteresting  by 
reason  of  their  abundant  technicalities.  It  is  out  of  a 
mind  impressed  with  the  vital  interest  of  these  cases, 
when  properly  seen,  that  the  writer  ventures  to  dispute 
that  common  but  somewhat  superficial  view ;  and  if,  even 
at  the  expense  of  some  loss  of  legal  precision,  he  has  im- 
parted through  the  medium  of  narrative  form  and  direct 
illustration  a  greater  sense  of  human  interest  to  his  sub- 
ject, his  purpose  is  entirely  effected. 

Charity  Building,  Boston,  Sept.  25,  1899. 


TABLE    OF    CONTENTS. 


Introduction.     F.  B.  Sanborn 

Preface     

Table  of  Contents       

Chapter  Eighty-three  with  Amendments  of  1898  .  . 
Amendments  of  1898  to  Chapter  Eighty-four  .... 
Amendments  of  1S98  to  Chapter  Eighty-six      .... 

Division  One 

Methods  of  investigation,  1 1  ;  Kindness  and  tact,  1 1  ; 
Ignorance  and  fraud,  12;  Traits  of  applicants,  13-14; 
Avoid  unnecessary  questions,  14;  Make  common  interest 
with  applicant,  1 5 ;  Make  investigation  forward,  not  back, 
16;  Record  evidence  of  residence,  16;  Directory  evidence 
of  residence,  16;  The  common  misrepresentations,  17;  Do 
not  interrupt  story,  if  probably  untrue,  18 ;  Assume  to 
know,  19;  Marital  relations  of  colored  applicants,  20;  As- 
sume fact  of  former  marriage,  20 ;  Truth  found  in  corrobo- 
rating details,  21  ;  validity  of  marriage,  22;  Precedence  of 
methods  of  gaining,  24 ;  Husband's  claim  always  first,  24 ; 
Case  cited,  25  ;  Settlements  for  the  living,  Taunton  v.  Bos- 
ton, 26-28 ;  A  mode  of  gaining  not  in  Chapter  Eighty-three, 
28  ;  Variety  in  histories  of  cases,  30 ;  A  typical  New  England 
history,  30-35 ;  The  1898  amendment  applied  to  that  his- 
tory, 35;  Questions  in  domicil,  35-36 ;  Make  history  com- 
plete as  possible  at  first  visit,  36 ;  General  view  of  military 
settlement  law,  37  ;  Conditions  of  gaining  military  settle- 
ments, 38 ;  Towns  have  construed  provisions  carefully,  39 ; 
Military  records  defective,  40 ;  Bounties  in  military  service, 
41  ;  Some  soldiers  excluded  from  benefits,  41  ;  The  work 
of  a  visitor,  42-44  ;  The  field  of  labor  in  Boston,  45 ;  The 
Cove  and  the  North  End,  46,  47 ;  Private  charities,  48 ; 
Associated  Charities,  49 ;  Official  and  volunteer  visiting,  42- 
45 ;  Methods  of  investigation  in  the  cities  and  towns,  51- 
54;  The  visitor  as  an  aid  toward  permanent  improvement, 
54;  Danger  of  routine  and  injudicious  giving,  55-57;  Per- 
manent effects  of  1872  fire,  57;  changes  in  nationality  of 
persons  aided,  58. 


Page 

iii-v 

vii-viii 

ix-xi 

1-6 

6-9 

9-10 

i-59 


X  TABLE    OF    CONTENTS 

Page 

Division  Two 59-132 

"  In  need  of  relief,"  60 ;  Relations  of  overseers  to  land- 
lords, 62  ;  Married  women,  settlement  by  husband,  64  ;  The 
fact  of  marriage  in  issue,  65 ;  Right  to  remarry,  67,  70 ; 
Determination  of  fact,  67-69;  Legitimate  children,  70; 
Legitimate  children  as  step-children,  71  ;  Minor  daughters 
emancipated  by  marriage,  72;  Time  of  attaining  majority, 
73  ;  Illegitimate  children,  73 ;  Intermarriage  of  parents  of 
illegitimate  children,  75-78;  Settlement  by  real  estate  own- 
ership, 78;  Owning  and  occupying,  79;  Points  of  technical 
construction  in  these  cases,  80-81  ;  Arbitration  in  questions 
of  settlement,  82  ;  Settlement  by  poll  tax,  82  ;  Removal  or 
aid  as  affecting  settlement,  83 ;  Involuntary  removal  inter- 
rupts, 83 ;  Intention  in  removal,  84  ;  When  does  domicil 
begin  ?  and  when  end  ?  86-87  !  Removal  with  purpose  to 
return,  88  ;  "  Pays  all,"  88  ;  Amount  paid,  89  ;  Payment  to 
change  settlement,  90-91  ;  Payment  after  aid  received,  91- 
92;  The  1874  amendments,  92-95;  Judicial  construction 
of  them,  94 ;  "  Duly  assessed,"  95 ;  Evidence  of  payment, 
95_96 ;  History  of  woman  settlements,  98 ;  Limitations  of 
1874  and  1879  acts,  99;  Settlement  by  mother  proven,  99; 
Absence  as  affecting  settlement,  101  ;  Domicil  of  servants 
and  operatives,  102-104;  Aid  to  mother  of  child,  104;  The 
military  settlement  law,  105;  Changes  in  phraseology,  106  ; 
Judicial  modifications,  106-107 ;  When  laws  take  effect, 
108;  "Duly  served,"  109;  Settlement  by  disability,  in; 
Disability  giving  no  settlement,  112;  Two  discharges  for 
disability,  1 1 3  ;  Desertion,  absence  without  leave,  113-116; 
Service  under  assumed  name,  117;  Congressional  reversal 
of  military  record,  11 7-1 19;  When  derivative  settlement  by 
service,  120;  An  omitted  mode  of  gaining  a  settlement, 
121  ;  With  exception,  settlement  can  be  lost  only  when 
another  gained,  121-125;  The  1871  statute  of  loss  of  set- 
tlement, 124;  The  1898  amendments,  125-127;  State  aid 
vs.  town  aid,  127;  Aid  to  unsettled  poor,  128-130;  Taxes 
must  be  paid  in  the  five  years,  131  ;  What  payment  affects 
former  settlement  ?  131-132;  The  minor  amendments,  132. 

Division  Three 133-171 

Practical  working  of  chapter  84,  133-134;  Former  meth- 
ods, 134;  An  efficient  chairman,  136,  137;  A  retired 
official,  138  ;  Aid  to  pauperize,  139-140  ;  Effect  of  imprison- 
ment at  public  charge,  141 ;  Aid  to  prevent  settlement,  142, 
143;  Altruism  in  relief,   145;  Tracing  a  settlement  under 


TABLE    OF    CONTENTS  XI 

Page 
difficulties,    145-152;     Improvement  in   business   relations, 

1 53 ;  Effect  of  Relief  Association,  1 54 ;  Estoppel  by  ver- 
dict, 155;  Results  of  careless  or  inefficient  service,  156; 
What  are  lawful  charges,  157,  158;  Aid  to  step-children, 
158;  "Notice  and  request,"  159;  Removal  within  thirty 
days,  160-161 ;  Shortening  of  time  for  denial,  161 ;  Denial 
and  removal,  162;  Children  born  before  marriage,  163; 
Adoption,  164-165;  Marriage,  166-168;  Divorce,  169; 
Conclusion,  170. 

APPENDIX. 

Opinions  of  Attorney-General 173-178 

Statutes   relating   to  Settlement  and  Aid  from  1865 

to  1892 179-200 

Index 201-205 


THE    PRESENT   SETTLEMENT  LAW  OF 
MASSACHUSETTS. 


Public  Statutes,  Chapter  83. 

Of  the  Settlement  of  Paupers. 

Section  i.  Legal  settlements  may  be  acquired  in  any- 
city  or  town,  so  as  to  oblige  such  place  to  relieve  and 
support  the  persons  acquiring  the  same,  in  case  they  are 
poor  and  stand  in  need  of  relief,  in  the  manner  following, 
and  not  otherwise  :  namely, — 

First.  A  married  woman  shall  follow  and  have  the  set- 
tlement of  her  husband,  if  he  has  any  within  the  State  : 
otherwise  her  own  at  the  time  of  marriage,  if  she  then 
had  any,  shall  not  be  lost  or  suspended  by  the  marriage. 

Second.  Legitimate  children  shall  follow  and  have  the 
settlement  of  their  father,  if  he  has  any  within  the  State, 
until  they  gain  a  settlement  of  their  own;  but,  if  he  has 
none,  they  shall  in  like  manner  follow  and  have  the  set- 
tlement of  their  mother,  if  she  has  any. 

Third.  Illegitimate  children  shall  follow  and  have  the 
settlement  of  their  mother  at  the  time  of  their  birth, 
if  she  then  has  any  within  the  State ;  but  neither  legiti- 
mate nor  illegitimate  children  shall  gain  a  settlement  by 
birth  in  the  place  where  they  are  born,  if  neither  of  their 
parents  then  has  a  settlement  therein. 

Fourth.  Any  person  of  the  age  of  twenty-one  years, 
having  an  estate  of  inheritance  or  freehold  in  any  place 
within  the  State,  and  living  on  the  same  three  years  suc- 
cessively, shall  thereby  gain  a  settlement  in  such  place. 

4  Cush.  172.        S  Cush.  525.         1  Gray,  619.        13  Gray,  93.        16  Gray,  395. 
6  Allen,  431,  477.        9  Allen,  137.        110  Mass.  113.        127  Mass.  540. 


2  THE    SETTLEMENT    LAW 

Fifth.  Any  person  of  the  age  of  twenty-one  years, 
who  resides  in  any  place  within  this  State  for  five  years 
together,  and  pays  all  State,  county,  city  or  town  taxes, 
duly  assessed  on  his  poll  or  estate,  for  any  three  years 
within  that  time,  shall  thereby  gain  a  settlement  in  such 
place. 

8  Allen,  551.        99  Mass.  587.         105  Mass.  293.         107  Mass.  59S.         126  Mass.  477. 

Chapter  425,  Acts  of   1898. 

Amending  Clause  Fifth. 

Section  i.  Clause  fifth  of  section  one  of  chapter 
eighty-three  of  the  Public  Statutes  is  hereby  amended  by 
inserting  after  the  word  "and,"  in  the  second  line,  the 
words  "within  that  time,"  so  that  the  clause  as  amended 
shall  read  as  follows  :  Fifth.  Any  person  of  the  age  of 
twenty-one  years,  who  resides  in  any  place  within  this 
State  for  five  years  together,  and  within  that  time  pays 
all  State,  county,  city  or  town  taxes,  duly  assessed  on  his 
poll  or  estate,  for  any  three  years  within  that  time,  shall 
thereby  gain  a  settlement  in  such  place. 

Chapter  83  continued. 

Sixth.  Any  woman  of  the  age  of  twenty-one  years, 
who  resides  in  any  place  within  this  State  for  five  years 
together,  shall  thereby  gain  a  settlement  in  such  place. 

Seventh.  The  provisions  of  the  preceding  clause  shall 
apply  to  married  women  who  have  not  a  settlement  de- 
rived by  marriage  under  the  provisions  of  the  first  clause, 
and  to  widows ;  and  a  settlement  thereunder  shall  be 
deemed  to  have  been  gained  by  an  unsettled  woman  upon 
the  completion  of  the  term  of  residence  therein  men- 
tioned, although  the  whole  or  a  part  of  such  term  has 
already  elapsed. 


THE    SETTLEMENT    LAW  3 

Eighth.  Any  person  being  chosen,  and  actually  serv- 
ing one  whole  year  in  the  office  of  clerk,  treasurer,  select- 
man, overseer  of  the  poor,  assessor,  constable,  or  collector 
of  taxes,  in  any  place,  shall  thereby  gain  a  settlement 
therein.  For  this  purpose  a  year  shall  be  considered  as 
including  the  time  between  the  choice  of  such  officers  at 
one  annual  meeting  and  the  choice  at  the  next  annual 
meeting,  whether  more  or  less  than  a  calendar  year. 

Ninth.  Every  settled  ordained  minister  of  the  gospel 
shall  be  deemed  to  have  acquired  a  legal  settlement  in  the 
place  wherein  he  is  or  may  be  settled  as  a  minister. 

Tenth.  A  minor  who  serves  an  apprenticeship  to  a 
lawful  trade  for  the  space  of  four  years  in  any  place,  and 
actually  sets  up  such  trade  therein  within  one  year  after 
the  expiration  of  said  term,  being  then  twenty-one  years 
old,  and  continues  there  to  carry  on  the  same  for  five 
years,  shall  thereby  gain  a  settlement  in  such  place  ;  but 
being  hired  as  a  journeyman  shall  not  be  considered  as 
setting  up  a  trade. 

Eleventh.  Any  person  who  was  duly  enlisted  and 
mustered  into  the  military  or  naval  service  of  the  United 
States,  as  a  part  of  the  quota  of  any  city  or  town  in  this 
Commonwealth,  under  any  call  of  the  President  of  the 
United  States  during  the  late  Civil  War,  or  duly  assigned 
as  a  part  of  the  quota  thereof  after  having  been  enlisted 
and  mustered  into  said  service,  and  who  duly  served  for 
not  less  than  one  year,  or  died  or  became  disabled  from 
wounds  or  disease  received  or  contracted  while  engaged  in 
such  service,  or  while  a  prisoner  in  the  hands  of  the 
enemy,  and  his  wife  or  widow  and  minor  children  shall  be 
deemed  thereby  to  have  acquired  a  settlement  in  such 
place  ;  and  any  person  who  would  otherwise  be  entitled 
to  a  settlement  under  this  clause,  but  who  was  not  a  part 
of  the  quota  of  any  city  or  town,  shall,  if  he  served  as  a 
part  of   the  quota  of   the  Commonwealth,  be  deemed  to 


4  THE    SETTLEMENT    LAW 

have  acquired  a  settlement  in  the  place  where  he  actually- 
resided  at  the  time  of  his  enlistment.  But  these  pro- 
visions shall  not  apply  to  any  person  who  was  enlisted 
and  received  a  bounty  for  such  enlistment  in  more  than 
one  place,  unless  the  second  enlistment  was  made  after 
an  honorable  discharge  from  the  first  term  of  service, 
nor  to  any  person  who  has  been  proved  guilty  of  wilful 
desertion,  or  who  left  the  service  otherwise  than  by- 
reason  of  disability  or  an  honorable  discharge. 

Tzvelfth.  Upon  the  division  of  a  city  or  town,  every 
person  having  a  legal  settlement  therein,  but  being  absent 
at  the  time  of  such  division,  and  not  having  acquired  a 
legal  settlement  elsewhere,  shall  have  his  legal  settlement 
in  that  place  wherein  his  last  dwelling-place  or  home  hap- 
pens to  fall  upon  such  division  ;  and  when  a  new  city  or 
town  is  incorporated,  composed  of  a  part  of  one  or  more 
incorporated  places,  every  person  legally  settled  in  the 
places  of  which  such  new  city  or  town  is  so  composed, 
and  who  actually  dwells  and  has  his  home  within  the 
bounds  of  such  new  city  or  town  at  the  time  of  its  incor- 
poration, and  any  person  duly  qualified  as  provided  in  the 
eleventh  clause  of  this  section,  who  at  the  time  of  his 
enlistment  dwelt  and  had  his  home  within  such  bounds, 
shall  thereby  acquire  a  legal  settlement  in  such  new 
place ;  but  no  person  residing  in  that  part  of  a  place 
which  upon  such  division  is  incorporated  into  a  new  city 
or  town,  and  having  then  no  legal  settlement  therein, 
shall  acquire  any  by  force  of  such  incorporation  only;  nor 
shall  such  incorporation  prevent  his  acquiring  a  settle- 
ment therein,  within  the  time  and  by  the  means  by  which 
he  would  have  gained  it  there  if  no  such  division  had  been 
made. 

Sect.  2.  Nothing  in  the  preceding  section  shall  be 
construed  to  give  to  any  person  the  right  to  acquire  a 
settlement,  or  to  be  in  process  of  acquiring  a  settlement, 


THE    SETTLEMENT    LAW  5 

while  receiving  relief  as  a  pauper,  unless  within  five  years 
from  the  time  of  receiving  such  relief  he  reimburses  the 
cost  thereof  to  the  city  or  town  furnishing  the  same. 

Sect.  3.  No  person  who  actually  supports  himself  and 
his  family  shall  be  deemed  to  be  a  pauper  by  reason  of  the 
commitment  of  his  wife,  child,  or  other  relative  to  a  lu- 
natic hospital  or  other  institution  of  charity,  reform,  or  cor- 
rection by  order  of  a  court  or  magistrate,  and  of  his 
inability  to  maintain  such  wife,  child,  or  relative  therein  ; 
but  nothing  herein  contained  shall  be  construed  to  release 
him  from  liability  for  such  maintenance. 

Sect.  4.  No  person  who  has  begun  to  acquire  a 
settlement  by  the  laws  in  force  at  and  before  the  time 
when  this  chapter  takes  effect,  in  any  of  the  ways  in 
which  any  time  is  prescribed  for  a  residence,  or  for  the 
continuance  or  succession  of  any  other  act,  shall  be  pre- 
vented or  delayed  by  the  provisions  hereof ;  but  he  shall 
acquire  a  settlement  by  a  continuance  or  succession  of 
the  same  residence  or  other  act,  in  the  same  time  and 
manner  as  if  the  former  laws  had  continued  in  force. 

Sect.  5.  Except  as  hereinafter  provided,  every  legal 
settlement  shall  continue  till  it  is  lost  or  defeated  by 
acquiring  a  new  one  within  this  State  ;  and  upon  acquiring 
such  new  settlement  all  former  settlements  shall  be 
defeated  and  lost. 

Sect.  6.  All  settlements  acquired  by  virtue  of  any 
provision  of  law  in  force  prior  to  the  eleventh  day  of  Feb- 
ruary in  the  year  seventeen  hundred  and  ninety-four  are 
hereby  defeated  and  lost ;  except  where  the  existence  of 
such  settlement  prevented  a  subsequent  acquisition  of 
settlement  in  the  same  place  under  the  provisions  of  the 
fourth,  fifth,  sixth,  eighth,  ninth,  tenth,  eleventh,  and 
twelfth  clauses  of  section  one  of  this  chapter,  or  under 
corresponding  provisions  in  other  statutes  existing  prior 
to    the   passage    hereof;    and  provided,  that,  whenever  a 


6  THE    SETTLEMENT    LAW 

settlement  acquired  by  marriage  has  been  thus  defeated, 
the  former  settlement  of  the  wife,  if  not  defeated  by  the 
same  provision,  shall  be  thereby  revived. 

Chapter  425,  Acts  of   1898. 

Amending  Sections  Six,  Chapter  83,  and  Sectio?is  Six,  Seven,  and 
Eighteen,  Chapter  84,  Public  Statutes. 

Sect.  2.  Section  six  of  said  chapter  is  hereby 
amended  by  striking  out  the  whole  of  said  section  and 
inserting  in  place  thereof  the  following :  Section  6.  All 
settlements  not  fully  acquired  subsequent  to  the  first  day 
of  May  in  the  year  eighteen  hundred  and  sixty  are  hereby 
defeated  and  declared  to  be  lost,  except  where  the  exist- 
ence of  such  settlement  prevented  a  subsequent  acquisi- 
tion of  settlement  in  the  same  place  :  provided,  that,  when- 
ever a  settlement  acquired  by  marriage  has  been  thus 
defeated,  the  former  settlement  of  the  wife,  if  not  defeated 
by  the  same  provision,  shall  be  thereby  revived.  All  per- 
sons absent  from  the  Commonwealth  of  Massachusetts  for 
ten  years  in  succession  shall  lose  their  settlement. 

Sect.  3.  Section  six  of  chapter  eighty-four  of  the 
Public  Statutes  is  hereby  amended  by  adding  at  the  end 
thereof  the  words  :  "and  hereafter  the  same  legal  obliga- 
tion to  support  her  pauper  children  shall  rest  upon  the 
mother  as  now  by  law  rests  upon  the  father :  provided, 
however,  that  the  mother  shall  not  be  liable  to  criminal 
prosecution  for  the  enforcement  of  such  legal  obligation," 
—  so  as  to  read  as  follows :  Section  6.  The  kindred  of 
such  poor  persons,  in  the  line  or  degree  of  father  or 
grandfather,  mother  or  grandmother,  children  or  grand- 
children, by  consanguinity,  living  in  this  State  and  of  suffi- 
cient ability,  shall  be  bound  to  support  such  paupers,  in 
proportion  to  their  respective  ability,  and  hereafter  the 
same  legal  obligation  to  support  her  pauper  children  shall 


AMENDMENTS    OF    1 898  7 

rest  upon  the  mother  as  now  by  law  rests  upon  the  father  : 
provided,  hoivever,  that  the  mother  shall  not  be  liable  to 
criminal  prosecution  for  the  enforcement  of  such  legal 
obligation. 

Sect.  4.  Section  seven  of  said  chapter  eighty-four  is 
hereby  amended  by  striking  out  the  whole  of  said  section 
and  inserting  in  place  thereof  the  following :  Section  7. 
Any  justice  of  the  superior  court  sitting  in  equity  in  the 
county  where  any  one  of  such  kindred  to  be  charged 
resides,  upon  complaint  of  any  city,  town,  or  kindred  who 
has  been  at  expense  for  the  relief  and  support  of  such 
pauper,  may  on  due  hearing  assess  and  proportion  thereto 
such  sum  as  he  shall  deem  reasonable  for  or  towards  the 
support  of  the  pauper  to  the  time  of  such  assessment,  and 
may  enforce  payment  thereof  by  execution  in  common 
form  :  provided,  that  such  assessment  shall  not  extend  to 
any  expense  for  relief  afforded  more  than  two  years  previ- 
ous to  the  filing  of  the  complaint. 

Sect.  5.  Section  eighteen  of  said  chapter  eighty-four, 
as  amended  by  section  one  of  chapter  ninety  of  the  acts 
of  the  year  eighteen  hundred  and  ninety-one,  is  hereby 
amended  by  striking  out  the  whole  of  said  section  and 
inserting  in  place  thereof  the  following:  Section  18.  A 
city  or  town  may  furnish  aid  to  poor  persons  found  therein, 
having  no  lawful  settlement  within  the  State,  if  the  over- 
seers of  the  poor  deem  it  for  the  public  interest ;  but,  ex- 
cept in  case  of  sickness,  not  for  a  greater  amount  than  two 
dollars  a  week  for  each  family  during  the  months  of  May 
to  September  inclusive,  or  three  dollars  a  week  for  the 
months  of  October  to  April  inclusive,  and  the  overseers 
shall  in  every  such  case  give  immediate  notice  by  mail  to 
the  State  Board  of  Lunacy  and  Charity,  which  board  shall 
examine  the  case,  and  should  they  direct  discontinuance 
shall  remove  such  persons  to  the  State  almshouse  or  to 
any  State  or  place  where  they  belong,  when  the  neces- 


8  THE    SETTLEMENT    LAW 

sities  of  such  persons  or  the  public  interest  require  such 
removal,  and  the  superintendent  of  said  almshouse  shall 
receive  the  persons  so  removed  thereto  the  same  as  though 
sent  in  accordance  with  the  provisions  of  section  twenty- 
one  of  chapter  eighty-six  of  the  Public  Statutes,  as 
amended  by  chapter  eighty-four  of  the  acts  of  the  year 
eighteen  hundred  and  ninety-one,  and  a  detailed  statement 
of  expenses  so  incurred  shall  be  rendered,  and  after  ap- 
proval by  the  State  Board  of  Lunacy  and  Charity  such 
expenses  shall  be  paid  from  the  State  treasury.  (Ap- 
proved May  13,  1898.) 

Chapter  354,  Acts  of  1898. 

An  Act  Relative  to  the  Funeral  Expenses  of  Paupers. 

Be  it  enacted,  etc.,  as  follows : 

Section  seventeen  of  chapter  eighty-four  of  the  Public 
Statutes,  as  amended  by  chapter  three  hundred  and  ten  of 
the  acts  of  the  year  eighteen  hundred  and  eighty-seven, 
and  by  chapter  seventy-one  of  the  acts  of  the  year  eigh- 
teen hundred  and  ninety,  is  hereby  amended  by  striking 
out  the  whole  of  said  section  and  inserting  in  place  thereof 
the  following:  Section  17.  The  overseers  of  the  poor 
of  each  place  shall  also  relieve,  support,  and  employ  all 
poor  persons  residing  or  found  therein,  having  no  lawful 
settlements  within  this  State,  until  their  removal  to  the 
State  almshouse,  and  in  case  of  their  decease  shall  de- 
cently bury  them ;  they  shall  also  decently  bury  all  such 
persons  who  have  died  without  means  of  support,  but 
without  applying  for  public  relief  while  living,  and  all  un- 
known persons  found  dead ;  the  expense  whereof  may  be 
recovered  of  their  kindred,  if  they  have  any  chargeable  by 
law  for  their  support,  in  the  manner  hereinbefore  pro- 
vided ;  and  if  in  case  of  their  burial  the  expense  thereof  is 
not  paid  by  such   kindred,  there  shall  be  paid  from  the 


AMENDMENTS    OF    189S  9 

treasury  of  the  Commonwealth  an  amount  not  exceeding 
fifteen  dollars  for  the  funeral  expenses  of  each  pauper  over 
twelve  years  of  age,  and  an  amount  not  exceeding  ten  dol- 
lars for  the  funeral  expenses  of  each  pauper  under  that 
age.     (Approved  April  21,  1S98.) 

Chapter  391,  Acts  of   1898. 

An  Act  Relative  to  the  Support  of  State  Poor  by  Cities  and  Totems. 

Be  it  enacted,  etc.,  as  follozvs  : 

Section  twenty-six  of  chapter  eighty-six  of  the  Public 
Statutes,  as  amended  by  chapter  two  hundred  and  eleven  of 
the  acts  of  the  year  eighteen  hundred  and  eighty-five,  and 
by  chapter  one  hundred  and  fifty-three  of  the  acts  of  the 
year  eighteen  hundred  and  ninety-one,  is  hereby  amended 
by  inserting  after  the  word  "the,"  in  the  first  line,  the 
word  "reasonable,"  and  by  striking  out  all  of  said  section 
after  the  word  "  Commonwealth,"  in  the  sixth  line,  and  in- 
serting in  the  place  thereof  the  words:  "The  bills  for 
such  support  shall  not  be  allowed  unless  they  are  indorsed 
with  the  distinct  declaration  that,  after  full  investigation, 
no  kindred  able  to  pay  the  amount  charged  have  been 
found,  and  that  the  amount  has  actually  been  paid  from 
the  city  or  town  treasury,  nor  unless  they  are  approved  by 
the  State  board  or  by  some  person  designated  by  it ;  and 
not  more  than  five  dollars  a  week  shall  be  allowed  for  the 
support  of  a  person  in  a  city  or  town  hospital," — so  as  to 
read  as  follows :  Section  26.  The  reasonable  expense 
incurred  by  a  city  or  town  under  the  provisions  of  the  pre- 
ceding section,  within  five  days  next  before  notice  has 
been  given  as  therein  required,  and  also  after  the  giving 
of  such  notice  and  until  said  sick  person  is  able  to  be  re- 
moved to  the  almshouse,  shall  be  reimbursed  by  the  Com- 
monwealth. The  bills  for  such  support  shall  not  be 
allowed  unless  they  are  indorsed  with  a  distinct  declara- 


IO  THE    SETTLEMENT    LAW 

tion  that,  after  full  investigation,  no  kindred  able  to  pay 
the  amount  charged  have  been  found,  and  that  the  amount 
has  actually  been  paid  from  the  city  or  town  treasury,  nor 
unless  they  are  approved  by  the  State  board  or  by  some 
person  designated  by  it ;  and  not  more  than  five  dollars  a 
week  shall  be  allowed  for  the  support  of  a  person  in  a  city 
or  town  hospital.     (Approved  April  29,  1898.) 

[In  the  appendix  will  be  found  the  principal  settlement 
laws  enacted  since  1865,  so  far  as  they  deal  with  the  poor 
not  in  institutions,  together  with  the  most  recent  law  for 
State  and  military  aid.  At  the  end  of  these  are  sundry 
recent  opinions  of  the  Attorney-general,  interpreting  an 
official  view  of  the  effect  of  recent  enactments ;  and  these 
are  of  great  value  as  showing  the  lines  on  which  the  State 
officers  will,  in  future,  administer  the  law. 

It  is  much  regretted  that  the  plan  of  this  work  has  pre- 
vented the  admission  of  many  enactments  pertaining  to 
allied  subjects  often  directly  connected  with  this,  as  those 
of  military  aid,  of  support  of  the  insane,  and  the  care  and 
maintenance  of  unfortunate  children. 

It  might  seem,  at  first  sight,  that  the  assembling  of 
these  older  statutes  has  an  historical  rather  than  a  practi- 
cal value,  and  that  the  careful  placing  of  a  date  of  enact- 
ment after  each  is  a  refinement  of  superfluous  accuracy. 
The  author  begs  his  reader  to  remember,  if  he  has  the 
care  of  the  interests  of  his  town  in  his  charge,  that  the 
exact  date  in  which  the  statute  of  1879,  for  instance,  took 
effect,  which  fact  the  Public  Statutes  will  not  give  him, 
will  more  than  once  be  necessary  for  him  to  know,  and 
to  compare  with  his  evidence  of  death,  in  order  that  he 
may  determine  the  status  of  a  distressed  family.] 


1.  For  the  purpose  of  convenient  reference  the  present 
statute  of  settlement  is  placed  at  the  beginning  of  this 
section,  with  the  principal  amendments  of  1898  imme- 
diately following  the  sections  amended. 


Division  One]  IMPORTANCE    OF    A    DATE  II 

But,  before  considering  the  statutes  and  decisions  relat- 
ing to  settlements,  it  will  forward  the  end  in  view  if  some 
time  is  spent  in  remark  on  the  best  methods  of  investiga- 
tion of  applications  for  aid.  This  is  the  more  expedient 
because  the  great  general  principles  on  which  conclusions 
are  founded  can  be  more  clearly  indicated  in  a  continuous 
statement  than  in  detached  notes  upon  special  provisions 
of  the  statutes.  A  reason  more  conclusive  still  for  this 
course  will  be  found  in  the  fact  that  some  provisions  of 
former  statutes  of  settlement,  not  included  in  the  codifica- 
tion of  1878,  are  yet  by  decisions  included  in  the  body 
of  the  present  settlement  law. 

METHODS    OF    INVESTIGATION. 

2.  As  it  is  impossible  to  frame  a  set  of  questions  that 
will  cover  any  considerable  number  of  investigations,  so 
it  is  not  practicable  to  suggest,  in  a  treatise  like  this,  the 
various  lines  of  investigation  that  different  cases  will  make 
necessary.  As  little  as  a  doctor,  called  to  a  case  of  sick- 
ness, can  tell  into  what  part  of  the  system  his  investiga- 
tions will  lead  him,  can  the  searcher  for  a  settlement 
predict  along  what  line,  of  the  many  possible,  his  inquiry 
will  run.  He  must  go  to  his  case  armed  with  the  rules 
covering  his  investigation,  and  then  allow  the  answer  of 
each  question  to  govern  the  next  question. 

KINDNESS    AND    TACT. 

3.  It  will  be  well  for  the  visitor  to  remember  that  the 
persons  to  whom  he  goes  are  entitled  to  kindness  and 
courtesy  on  his  part ;  and  he  will  be  careful  to  exercise 
these,  if  not  because  he  feels  a  real  sympathy  with  suffer- 
ing and  sorrow,  then  for  the  still  sufficient  reason  that  his 
truest  success  is  possible  only  by  a  show  of  these  virtues. 
He  will  find  his  applicants  depressed  by  sorrow,  angry 
with  themselves  and  with  the  world,  willing  to  take  arms 


\ 


12  THE    SETTLEMENT    LAW  [Division  One. 

against  a  sea  of  troubles  by  finding  fault  with  the  first 
stranger  whom  they  see,  morbidly  anxious  to  conceal  the 
skeleton  in  the  closet,  or  to  prevent  their  dead  parents  from 
being  drawn  into  the  disgrace  in  which  they  find  them- 
selves involved,  and  through  all  this  outwork  of  defence 
he  must  find  his  way  to  their  confidence  and  goodwill,  or 
must  fail  in  his  mission.  Some  visitors  who  go  into  the 
houses  of  the  poor,  stand  in  the  middle  of  the  floor  with 
their  hats  on,  and  ask  their  questions  with  a  brusque  air  of 
official  authority,  wonder  that  they  fail  to  get  the  intimate 
facts  that  freely  come  out  under  a  more  humane  inquiry. 
If  a  visitor  cannot  feel  touched  with  some  sense  of  pity 
for  human  infirmity  and  weakness,  he  may  well  despair 
of  easy  success  in  his  calling ;  and  he  will  often  have  occa- 
sion to  compare  his  meagre  results  with  the  complete 
record  of  one  who  is  at  home  among  the  poor.  The  suc- 
cessful visitor  knows  how  a  word  of  friendly  interest  — 
not  in  the  line  of  his  investigation  —  serves  as  a  breach  in 
the  defensive  works,  and  often  proves  how  surely  and 
absolutely  he  may  open  the  gates  of  the  city  by  the 
smallest  show  of  interest  in  the  little  children. 

IGNORANCE    AND    MISREPRESENTATION. 

4.  In  addition  to  the  hindrances  that  sensitiveness  and 
self-respect  impose,  the  visitor  must  be  prepared  to  meet 
ignorance  and  incapacity  to  state  the  things  that  it  is 
proper  for  him  to  know,  and  to  patiently  use  his  own 
better  skill  to  establish  the  necessary  facts.  Too  often 
for  his  faith  in  human  nature,  he  will  encounter  wilful 
deception  and  fraud,  and  will  often  find  his  most  satisfac- 
tory work  in  the  placing  of  truth  and  right  in  their  proper 
position. 

The  power  of  human  sympathy,  which,  in  its  proper  exer- 
cise, stops  a  long  way  short  of  indifference  to  wrong-doing, 
begets  naturally  a  capacity  to  place  ourselves  in  the  posi- 


Division  One.]  METHODS    OF    THE    VISITOR  1 3 

tion   of  another ;   and   this   is   of   primary  importance   in 
investigations  among  the  poor. 

5.  Even  the  good  priest,  in  Chaucer,  that  eternal  model 
and  pattern  for  one  who  would  do  good  in  the  best  way 
among  the  lowly  and  "  obstinat,"  did  not  forget,  even 
when  "wonder  pacient,"  that  there  might  at  any  time  be 
a  condition  in  which  to 

"  Snybben  sharply  for  the  nones  " 

would  be  the  only  thing  to  do. 

6.  The  visitor  will  find  that  his  clients  are  no  exception 
to  the  rule  that  every  living  thing  seeks  to  protect  him- 
self from  invasion,  and  is  endowed  with  some  faculty 
that  helps  to  that  end. 

As  the  fiercer  animals  have  teeth  and  claws,  those  more 
timid  speed  and  cunning,  the  bird  the  power  of  flight,  and 
the  weakest  insect  on  the  earth  has  at  least  the  protective 
influence  of  color  similar  to  his  surroundings,  by  which  he 
cheats  his  enemies  and  manages  to  live,  so  these  people 
who  merely  want  aid,  and  not  to  be  put  on  the  rack  as  a 
condition  of  obtaining  it,  parry  and  fence,  or  even  thrust, 
in  order  to  avoid  the  necessary  conditions. 

The  men  would  not  be  men  if  they  did  not  bluster  and 
swear  and  lay  the  blame  of  their  present  condition  on 
every  shoulder  except  their  own ;  and  the  women,  as 
a  rule,  wheedle,  and  appeal  to  the  sympathies  rather  than 
attempt  to  take  the  kingdom  by  violence. 

7.  But  it  is  not  by  any  means  the  fraudulent  and  un- 
worthy alone  who  use  these  or  similar  tactics  ;  and,  if  the 
visitor  will  ask  himself  —  far  as  he  feels  himself  removed 
from  the  condition  of  his  clients  —  such  questions  as 
these,  the  answers  must  modify  his  methods  and  his 
manners :  How  would  I  like  to  have  a  stranger  come  in 
and  investigate  my  weaknesses  and  transgressions  ?  If 
for  many  years  I  have  been  living  with  this  woman  not 


14  THE    SETTLEMENT    LAW  [Division  One. 

my  wife,  is  it  not  enough  that  the  ugly  fact  gnaws  at  our 
own  breast  night  and  day,  but  I  must  confess  it  to  a  man 
whom  I  never  saw  till  now  ?  Such  considerations  as 
these,  not  imaginary,  but  almost  every  day  practical,  must 
modify  our  conduct,  if  they  have  their  proper  humanizing 
effect. 

8.  Real  or  affected  interest  in  the  poor,  then,  we  must 
have ;  and  a  natural  endowment  saves  us  the  necessity  of 
acting  a  part  among  people  made  shrewd  by  their  misfort- 
unes and  faults.  And  when  the  person  concerned  is 
dead  or  gone  away,  and  we  have  to  approach  an  innocent 
sister  or  a  distressed  parent,  and  ask  them  to  help  us  on 
our  way,  I  know  of  no  word  of  sympathy  or  regret  at  the 
necessity  that  is  too  tender  to  be  spoken,  if  it  comes  from 
the  heart. 

AVOID    UNNECESSARY    QUESTIONS. 

9.  There  is  a  prying  and  gossiping  investigation  of  un- 
comfortable details  for  their  own  sake,  without  regard  to 
the  necessities  of  the  case,  which  should  be  as  far  from 
the  thoughts  of  the  visitor  as  is  the  just  suspicion  of  it 
from  the  mind  of  the  applicant. 

10.  Perhaps  after  some  question  he  will  be  met  with 
the  inquiry,  "Why  is  it  necessary  to  go  into  that?"  and 
it  will  be  wise  for  him  to  answer  that  he  has  no  more  per- 
sonal interest  in  this  detail  than  in  the  same  applying  to 
any  other  stranger,  adding  that  he  is  careful  to  ask  no 
more  than  his  duty  requires. 

CREATE    A    COMMON    INTEREST    BETWEEN    VISITOR    AND 
APPLICANT. 

11.  Sometimes  when  all  the  questions  about  the  imme- 
diate family  are  asked  and  truthfully  answered,  and  the 
ancestry  of  husband  or  wife  comes  under  consideration, 
the  question  is  abruptly  asked  (perhaps  with  some  mem- 


Division  One.]  EVIDENCE    OF    RESIDENCE  1 5 

ory  of  early  hope  blasted  or  of  marriage  against  the  wish 
of  parents),  "  Why  is  it  necessary  to  drag  my  parents 
into  this  ? "  and  then  the  visitor  will  be  able  to  go  on  with 
the  investigation  if  he  suggests  that  he  comes  as  the 
friend  of  the  applicant,  to  put  his  rights  on  record ;  and 
that,  if  the  applicant  does  not  need  the  records,  his  chil- 
dren at  some  future  time  may,  and  it  is  their  right  that 
they  should  be  preserved. 

MAKE    INVESTIGATIONS    FORWARD,    NOT    BACK. 

12.  In  all  matters  of  detail  affecting  family  history,  it 
cannot  be  too  strongly  recommended  that  the  investiga- 
tion, starting  from  a  fixed  point,  as  birth  or  landing  or 
marriage,  should  come  forward  month  by  month  or  year 
by  year  to  the  present  time.  The  other  method,  perhaps 
the  more  common,  of  going  back  from  the  present,  soon 
involves  the  unpractised  narrator  in  contradiction  and 
confusion ;  and  the  method  in  which  the  order  of  living 
re-enforces  technical  memory  is  much  to  be  preferred. 
As  it  is  only  by  long  practice  that  one  learns  to  run  back- 
ward half  as  surely  and  as  fast  as  he  can  forward  with  his 
feet,  so  in  the  matter  of  living  he  will  go  from  house  to 
house  and  from  town  to  town  much  more  readily  and 
surely  than  he  will  reverse  the  process. 

WAYS    OF    PROVING    RESIDENCE,  BIRTH   OR  DEATH    RECORDS, 
RENT    BILLS,  ETC. 

13.  As  so  much  of  settlement  investigation  turns  upon 
proof  of  continuous  residence,  some  suggestions  as  to  the 
various  methods  of  establishing  residence  will  perhaps  be 
useful,  especially  as  the  visitor  will  continually  find  his 
applicants  unable  to  tell  even  so  much  as  whether  they 
came  to  a  given  place  in  spring  or  fall.  Rent  bills  and 
tax  bills  combined  with  verbal  evidence  are  conclusive ; 
but  it  often  happens,  especially  in  the  cities,  that  no  rent 


1 6  THE    SETTLEMENT    LAW  [Division  One. 

bills  ever  were  given,  and  the  tax  bills  do  not  cover  the 
full  alleged  time.  In  this  case  the  testimony  of  a  credible 
neighbor,  who  perhaps  fixes  the  fact  by  a  birth  or  death 
in  her  own  family,  will  establish  the  necessary  date.  Or 
the  birth  or  death  of  a  child  in  the  family  of  the  appli- 
cant, duly  recorded  by  clerk  or  in  the  church,  will  have 
the  same  effect.  The  admission  of  a  child  to  school  and 
the  record  of  its  name  on  the  register  would  be  good  evi- 
dence of  residence,  as  would  also  charges  in  a  grocery  or 
fuel  store.  The  charge  of  the  teamster  or  railroad  which 
moved  furniture  with  the  date  established  has  fixed  more 
than  one  status ;  and,  if  the  applicants  claim  dates  from 
the  time  of  landing  from  a  foreign  port,  the  name  of  the 
ship  and  other  data  connected  with  it  (as  port  from  which 
arriving,  other  members  of  the  family  who  came  at  that 
time,  names  of  other  passengers,  and  season  of  the  year) 
will  place  the  date  beyond  doubt. 

EVIDENCE    BY    DIRECTORY. 

14.  It  is  doubtful  what  the  courts  will  say  about  an 
offer  to  prove  residence  by  evidence  of  directory.  It 
seems  like  almost  conclusive  evidence,  and  is  so  gener- 
ally received  between  municipalities;  but,  judging  by 
analogy,  a  town  would  not  be  allowed  to  set  up  that 
proof,  for  where  one  brought  suit  for  fraudulent  action 
against  a  man  in  Boston,  who  was  said  to  have  repre- 
sented himself  as  a  lawyer,  the  court  would  not  allow  the 
plaintiff  to  prove  that  the  name  of  the  defendant  was  so 
borne  in  the  directory  of  the  year  named,  on  the  ground 
that  there  was  no  evidence  connecting  the  defendant  with 
the  printing,  the  court  saying,  in  its  opinion,  that  the 
name  might  have  been  given  to  the  canvasser  by  a  man 
standing  in  the  street  doorway.  As  it  would  be  practi- 
cally impossible,  at  the  end  of  five  or  ten  years,  to  con- 
nect a  directory  record  with  any  explicit  direction  to  the 


Division  One.]         COMMON    MISREPRESENTATIONS  I  7 

canvassing  agent,  it  would  appear  that  such  evidence 
is  merely  confirmatory.  This  was  a  case  in  the  Superior 
Court,  and  there  is  no  printed  report  in  legal  form  of  the 
decision. 

THE    MORE    COMMON    MISREPRESENTATIONS. 

15.  It  will  often  happen,  without  suspicion  on  the  part 
of  the  visitor,  that  a  history  will  be  given  that  proves,  on 
investigation,  to  be  false  in  some  vital  particular.  It  may 
be  that  the  person  applying  gives  residences  correctly 
and  date  of  marriage  and  christened  names  of  children, 
but  changes  his  family  name,  perhaps  because  he  does 
not  want  his  family  to  know  his  condition.  Or  he  may 
have  been  aided  years  ago,  and  have  left  a  bad  reputation 
at  the  relieving  board.  Or  he  may  have  a  wife  living, 
and  the  woman  with  whom  he  lives  may  have  a  similar 
reason  for  misrepresentation.  These  are  the  most  diffi- 
cult cases  to  investigate,  when  natural  incapacity  is  re-en- 
forced by  a  motive  for  deception.  But  they  will  not  be 
found  in  the  end  to  be  insoluble ;  for  the  trained  intellect 
of  the  visitor  is  superior  in  power  and  resource  to  that  of 
the  deceiver,  whose  experience  has  taught  him  only  one 
hole  of  retreat,  while  the  knowledge  of  his  visitor  has 
shown  him  five  or  six,  in  one  of  which  he  will  surely 
find  his  man. 

16.  It  is  an  interesting  fact,  having  perhaps  some 
future  promise  in  the  line  of  imaginative  effort,  that  some 
of  the  very  best  of  these  attempts  at  deception  are  by 
young  girls,  intent  on  concealing  the  consequences  of 
that  want  of  knowledge  of  the  world  which  their  experi- 
ence confesses.  One  of  these,  who  divested  herself  of 
family  name,  and  stole  that  of  an  acquaintance,  born  in 
another  part  of  the  State,  learning  enough  of  the  history 
of  her  friend  against  the  time  when  she  might  be  ques- 
tioned,  seemed  wonderfully  like    the  hermit-crab,  which 


1 8  THE     SETTLEMENT     LAW  [Division  One. 

covers  its  unprotected  rear  with  a  stolen  shell ;  and  in  that 
safe  disguise  she  cost  a  world  of  trouble  in  investigation. 
In  the  end  she  was  very  glad  to  leave  her  refuge,  and  in 
some  anger;  for  the  person  whose  name  she  had  taken 
proved  to  have  had  so  much  worse  antecedents  than  her- 
self, having  lately  passed  a  whole  year  in  Sherborn  Prison, 
that  the  cave  of  refuge  became  a  cell  of  torture. 

AVOID  INTERRUPTING  THE  STORY. 

17.  In  these  cases  of  wilful  misleading,  where  it  is  an 
avowed  battle  of  intellect,  it  is  not  best  to  give  the  other 
the  advantage  of  wariness  that  a  continual  incredulity 
suggests.  Rather  will  the  visitor  allow  the  stream  of 
simulated  truthfulness  to  go  trickling  on  at  its  own  sweet 
will,  until  the  carelessness  of  security  drops  a  compromis- 
ing inconsistency.  Thus,  to  refer  to  a  recent  experience  •' 
"Where  were  you  born?"  "Cape  Breton."  "Father's 
name?"  "Joseph  L.H."  "Your  name?"  "Emily  D." 
"Then  you  are  married?"  "Yes."  "When  and 
where?"  "Buffalo,  1895."  "Where  is  your  husband 
now?"  "Somewhere  in  New  York  State."  "What  is 
his  name  ?  "  "  George  D."  "  Your  brother  Joseph  lives 
over  in  Medford,  doesn't  he  ?  "  "  Yes."  "  He  was  over 
in  town  last  night,  inquiring  after  you,  and  found  out 
where  you  are.  What  is  Joseph's  last  name?"  "D," 
"  How  can  his  name  be  the  same  as  yours,  D.,  if  you 
are  married?"  Then  rapidly,  "It  is  of  no  use  to  say 
what  is  not  true  about  these  things  :  they  are  all  matter 
of  record,  and,  if  you  deceive  about  them  to-day,  you  are 
found  out  to-morrow."  (Excusatory.)  "  You  have  to  say 
you  are  married,  or  they  will  not  take  you  in."  "Well, 
after  the  story  has  served  its  purpose,  I  would  not  go  on 
telling  it." 

18.  This  was  not  a  person  skilful  to  deceive,  for  her 
refuges  were  shallow  enough ;   but,  whether  shallow  or 


Division  One.]  AVOID    SHOWING    IGNORANCE  1 9 

profound  the  applicant,  the  visitor  may  assure  himself  that 
she  will  keep  from  him  what  she  can,  and  will  tell  no 
more  that  compromises  herself  than  she  thinks  is  already 
known  or  can  be  proven. 

AVOID    DISPLAY    OF    YOUR    OWN    IGNORANCE. 

19.  Taking  advantage  of  this  principle,  the  visitor  in 
these  doubtful  cases  will  always  do  well  not  to  too  openly 
display  how  little  he  already  knows,  but  will  by  cautious 
questioning,  suggesting  without  stating  further  knowledge, 
lead  up  to  facts  which  he  could  never  otherwise  learn. 

Example. —  A  bed-ridden  woman  receives  a  weekly 
allowance  of  money,  paid  to  her  poor  widowed  sister,  who 
cannot  support  her.  She  is  in  a  hopeless  condition  so  far 
as  improvement  is  concerned,  and  is  visited,  generally, 
only  once  a  year.  Seen  in  May,  she  is  asked  if  her  cir- 
cumstances are  changed  since  a  year  before,  and  espe- 
cially if  she  has  any  income  from  any  other  source,  both 
which  questions  she  answers,  squarely,  in  the  negative. 
Her  sister  is  gone  out ;  and,  as  there  is  some  other  business 
with  her,  the  visitor  sits  in  the  room  adjoining  the  bed- 
room, with  the  unmarried  adult  daughter  of  the  sister,  the 
door  of  the  bedroom  being  shut. 

This  conversation  ensues  :  "  I  think  your  mother  is  very 
good  to  care  for  her  sister  as  she  does,  for  she  must  be 
very  heavy  to  lift  about.  And  she  gets  no  more  from  any 
source  than  what  she  has  always  had  ?  "  "  Only  what 
Aunt  Lucy  left  in  her  will :  I  suppose  you  know  about 
that  ? "  "  I  never  have  heard  the  exact  sum."  (Drop  a 
tear,  recording  angel,  if  you  can  wring  one  out.)  "  Well, 
when  she  died  in  September,  she  left  her  one  dollar  a  day 
for  the  rest  of  her  life." 

(Scene  now  in  bedroom  again)  :  "  I  understood  you  to 
say  you  got  no  aid  only  that  of  which  I  knew."  "  I  do  not, 
from  any  public  source."     "I  did  not  limit  my  question 


20  THE    SETTLEMENT    LAW  [D 

in  that  way."     "Well,  what  my  family  do  for  me  I  do  not 
think  is  anybody's  business." 

Here   to   have  confessed    the  actual  ignorance   to  the 
niece  would  have  been  at  once  fatal. 


MARITAL    CONDITIONS    OF    COLORED    APPLICANTS. 

20.  There  is  no  class  with  whom  these  tactics  are  more 
indispensable  than  among  colored  applicants,  and  this 
mainly  because  of  the  incredible  levity  with  which  mar- 
riage arrangements  are  made  and  dissolved  by  them.  It 
is  not  that  they  live  in  open  relations  of  illegal  cohabita- 
tion, for  they  are  not  more  liable  to  this  charge  than  are 
many  other  races ;  but  it  is  through  their  singular  attach- 
ment to  religious  forms,  joined  to  their  insensibility  to  the 
principles  of  good  morals,  that  they  arrive,  through  pro- 
cesses apparently  legal,  at  illegal  results.  Thus,  in  any 
random  ten  applications  for  aid  by  colored  people,  it  will 
be  possible  in  five  or  more  to  show  that  the  legal  results 
of  marriage  or  birth  do  not  follow,  because  the  ceremony 
of  marriage,  duly  performed,  was  not  legal  by  reason  of 
one  or  the  other  or  both  of  the  contracting  parties  then 
being  under  the  obligation  of  an  undissolved  marriage 
contract. 

IT    IS    BETTER    TO    ASSUME    THE    FACT. 

21.  In  getting  at  this  fact,  it  will  generally  be  useless 
for  the  investigator  to  ask  the  question  direct ;  for  the 
person  questioned  will  at  once  infer  that  the  former  mar- 
riage is  unknown  to  the  questioner,  and  may  just  as  well 
remain  so.  Under  these  circumstances  the  direct  ques- 
tion, "  Were  either  of  you  married  before  ?  "  is  very  sure  to 
be  met  by  a  direct  negative.  But  if  instead  the  question 
is  asked  :  "  Where  were  you  living  when  your  first  husband 
left  you  ?  Or  did  you  leave  him  ?  "  it  will  often  occur  that 
the   answer  will   come,  obviously  truthful,  "  neither  was 


Division  One]     MARITAL    RELATIONS    OF    COLORED  2  1 

married  before,"  and  no  hurt  is  done  by  the  question.  But 
in  the  other  case  the  question  is  pretty  sure  to  bring  some 
compromising  or  hesitating  answer  that  will  suggest  a 
further  clew. 

TRY    FOR    CORROBORATIVE    DETAILS. 

22.  The  questioner  should  remember  always,  in  this 
effort  to  bring  out  what  is  hidden  by  purpose  or  by  igno- 
rance, that  the  story  previously  framed  to  tell  on  occasion, 
is  a  mere  skeleton,  and  that  his  efforts  must  mainly  be 
directed  to  the  proof  of  it,  if  true,  by  the  off-hand,  unstudied 
addition  of  the  many  details  that  truth  only  can  supply, 
or  the  refutation  of  it  by  the  failure  to  invent  details,  if  it 
is  false.  This  is  a  test  of  the  widest  application  in  all 
investigations  where  the  reliability  of  the  narrator  is  in 
doubt,  and,  in  fairly  skilful  hands,  will  always  elicit  the 
fact. 

APPLICATION    OF    THE    TEST. 

23.  Thus  a  woman  living  with  her  second  husband, 
and  having  three  children  by  him  and  one  by  the  first, 
professed  to  have  lost  the  first  by  drowning  at  sea.  She 
knew  the  month  in  which  he  sailed  on  his  last  voyage,  the 
name  of  a  man  who  came  and  told  her  the  vessel  was 
lost  and  her  husband  drowned,  and  pointed  to  a  directory 
of  the  following  year  in  which  she  was  set  down  as  widow. 
And  yet  she  did  not  know  and  never  had  known  the  name 
of  the  vessel  in  which  he  sailed,  although  she  assumed  to 
know  she  was  a  fisherman  sailing  from  the  town  in  which 
her  husband  always  lived,  and  she  with  him  up  to  the 
time  of  his  sailing  away ;  nor  had  she  ever  tried  to  learn 
the  name  of  the  owner.  Asked  why  she  had  violated  the 
rule  of  the  church  by  going  away  from  the  city  and 
parish  in  which  she  lived  to  another  town,  when  remar- 
ried, she  could  give  no  answer. 

24.  So   here    was    a    skeleton    with    connective    tissue 


2  2  THE     SETTLEMENT     LAW  [Division  One. 

lacking,  and  it  was  not  a  matter  of  great  surprise  to 
learn  that  the  first  husband  was  still  living  at  the  place 
where  she  had  left  him  ten  years  before.  The  more 
trivial  these  details  asked,  and  the  more  numerous,  the 
better,  for  the  purposes  of  a  test  of  truth. 

25.  But  to  return  for  a  minute  more  to  the  peculiar 
difficulties  in  the  investigations  of  the  claims  of  colored 
people  to  settlement. 

A  woman  living  in  old  Ward  6  of  Boston  will  say  at 
first  that  her  husband  is  "  daid,"  and,  when  confronted 
with  the  fact  that  he  is  living  at  the  South  End  with 
another  woman,  will  justify  herself  by  answering  that  he 
is  dead  to  her,  and  has  done"nofFn"  for  her  for  three 
years.  Further  investigation  will  show  that  she  is  not 
known  by  the  name  that  she  gives,  where  she  lives,  and 
that  she  went  through  a  form  of  legal  marriage  with  the 
man  whose  name  she  bears  in  the  alley,  about  the  time 
the  real  husband  went  away. 

VALIDITY  OF  MARRIAGE. 

26.  It  is  not  an  unknown  thing,  where  the  right  of 
support  comes  by  marriage,  for  the  town  of  alleged  settle- 
ment to  seek  to  avoid  the  responsibility  by  showing  that 
the  man  living  at  the  South  End,  though  nominally  the 
husband  of  this  woman,  is  not  really  so,  for  the  reason 
that  he  had  a  wife  living  when  he  married  her.  But  it 
would  be  a  rash  and  inexperienced  investigation  that 
should  leave  the  case  there,  for  a  little  patient  work  will 
find  the  woman  who  was  this  man's  first  wife,  or,  if  she  is 
dead,  her  sister  or  brother,  and  they  will  soon  show  that 
she  had  an  undivorced  husband  living  when  she  married 
him  ;  that  therefore  his  marriage  to  her  had  no  effect,  and 
there  was  no  legal  impediment  to  his  transmitting  an 
unimpaired  settlement  to  the  woman  whom  he  has  lately 
abandoned.     But  the  visitor  will  always  turn  from  a  case 


Division  One.]  VALIDITY    OF    MARRIAGE  2$ 

of  this  kind  with  a  sigh  of  tender  regret  that  the  imper- 
fection of  marriage  records  and  the  death  or  absence  of 
persons  who  could  establish  the  whole  truth  leave  him  at 
last  in  doubt  as  to  whether  he  has  reached  the  last  alter- 
native in  the  seesaw  problem. 

GREAT  CARE  NECESSARY  WHERE  MARRIAGE  IS  AN  ELEMENT. 

27.  Where  there  are  wife  and  children  in  the  case,  the 
fact  of  marriage  is  always  a  vital  point  and  one  on  which 
clear  evidence  is  essential.  For  if  there  was  a  marriage 
ceremony  which  could  not  take  effect,  the  status  of  the 
wife  and  children  is  not  fixed  by  the  first  clause  of  the 
settlement  law,  as  also  if  there  has  been  no  ceremony  of 
marriage.  But  from  what  is  said  before  it  will  be  inferred 
that  a  proven  ceremony  by  no  means  establishes  the 
status. 

28.  It  is  always  subject  of  investigation  whether  these 
two  could  contract  and  have  contracted  marriage,  and 
there  are  some  interesting  cases  enforcing  this  necessity 
for  investigation. 

CASE    CITED. 

29.  Thus  a  girl  twenty-two  years  old,  settled  by  her 
mother  in  B.,  marries  a  New  Hampshire  man  twenty- 
three  years  old,  whose  parents  never  lived  in  Massachu- 
setts. It  is  not  apparent  how  there  could  be  a  change  in 
this  case,  until  systematic  questioning  shows  that  three 
years  ago  the  young  woman  married  a  man,  now  living, 
twenty-four  years  old,  who  has  a  settlement  in  C, 
that  she  never  has  been  legally  separated  from  him,  and 
that  she  "married"  her  present  husband  without  legal 
right  to  do  so,  leaving  her  settlement  and  that  of  an  ille- 
gitimate child  by  the  New  Hampshire  father  still  in 
C.  by  her  husband. 


24  THE    SETTLEMENT    LAW  [Division  One. 

PRECEDENCE    OF    STATUTES. 

30.  Reading  over  the  provisions  of  the  statute  of  settle- 
ment, the  student,  remembering  the  proverb  in  Shake- 
speare, "  When  two  are  on  horseback,  one  must  needs 
ride  behind,"  will  ask, —  where  one  clause  provides  that 
married  women  shall  have  their  husband's  settlement, 
and  another  that  women  living  five  years  shall  gain 
one  of  their  own, —  Which  of  these  will  take  precedence 
where  their  provisions  conflict?  For  instance,  a  woman 
having  settlement  by  her  husband  in  A.,  moves  with 
him  to  B.,  where  they  live  five  years,  he  paying  no  tax. 
Then  they  receive  aid.  From  the  reading  of  the  statute 
it  is  impossible  to  say  to  which  of  these  places  her  aid 
would  be  charged,  and  it  is  only  by  the  judicial  con- 
struction of  her  condition  of  coverture  during  marriage 
that  we  arrive  at  the  conclusion  that  her  five  years  is  not 
effective  so  long  as  she  has  a  settlement  by  her  husband. 

31.  And  so  of  the  clause  relating  to  the  ownership  of 
real  estate.  There  is  no  qualification  in  it  by  which  one 
would  doubt  that  a  woman,  old  enough  and  living  on  it 
long  enough,  would  gain  a  settlement  in  three  years. 
But  by  judicial  construction,  Spencer  v.  Leicester,  140 
Mass.  224,  it  is  held  that  this  clause  does  not  apply  to 
married  women  during  coverture.  The  decision  that 
fixed  this  principle  was  a  surprise  to  overseers  of  the  poor 
long  conversant  with  the  settlement  law,  especially  when 
they  remembered  that  at  one  time  unsettled  men  were 
permitted  to  derive,  by  courtesy,  some  rights  of  settle- 
ment from  the  inherited  settlement  of  the  wife. 

SEE  THE  FIRST  SENTENCE,  CLAUSE  I,  CHAPTER  83. 

32.  But  the  student  can  settle  upon  this  principle, 
among  seeming  contradictions,  that  no  other  line  of  in- 
vestigation begins  until  that  of  the  husband  and  father  is 


Division  One.]  PRECEDENCE    OF    STATUTES  25 

ended.  He  will  follow  the  husband  from  the  time  of  his 
majority  up  (but,  in  the  case  of  military  settlement,  will 
not  consider  his  age  at  all),  and,  failing  a  settlement  by 
the  acts  of  the  husband,  will  investigate  his  father  during 
the  father's  majority.  Now,  if  failing  to  prove  anything 
by  that,  he  turns  to  the  applicant's  mother,  he  goes  right 
off  the  straight  road.  He  must  remember  that  we  have 
set  aside  the  right  of  the  wife  to  gain,  if  the  husband 
then  has  any  settlement ;  and,  before  we  can  leave  the 
road  at  this  first  turn,  we  must  go  on  by  the  straight  path 
to  inquire  whether  this  father  had  any  by  his  father,  and 
so  back  to  May  1,  i860,  or  earlier,  before  we  can  found 
any  claim  upon  the  maternal  side.  This  point  is  thus 
emphasized  because  it  is  here  more  than  at  any  other 
point  that  the  unwary  inquirer  slips.  Of  course,  if  the 
man  has  none,  we  turn  at  once  to  the  woman  ;  but  it  is 
fatal  to  do  that  too  easily.  Many  illegal  charges  have 
been  assumed  by  towns  who  have  too  readily  said,  "  She 
and  the  children  belong  to  us,  if  the  husband  has  no  set- 
tlement," and  then  have  too  easily  settled  down  to  that 
alternative. 

CASE    CITED. 

33.  A  woman,  belonging  in  a  Massachusetts  town  by 
her  father's  military  service,  married  a  Maine  man.  Hav- 
ing learned  that  his  immediate  ancestors  had  never  lived 
in  this  State,  the  town  aiding  the  case  felt  safe  in  treat- 
ing the  case  as  settled  only  on  the  wife's  side,  and  the 
man  as  a  State  charge.  But  an  examination  one  genera- 
tion further  back  than  they  had  thought  necessary  to  go 
brought  out  the  important  fact  that  the  man's  father,  born 
in  Maine,  was  the  son  of  a  widow,  who,  when  she  went  to 
Maine  in  1818,  left  a  settlement  by  her  husband  in  central 
Massachusetts.  Under  the  facts  as  afterward  learned  the 
case  went  back  to  this  old  settlement,  and  the  claim 
through  the  wife  was  not  made  the  ground  of  any  charge. 


20  THE    SETTLEMENT    LAW  [Division  One. 

34.  This  case  would  now,  under  the  legislation  of  1898, 
be  properly  decided,  "  Man  state  case,  wife  settled." 

35.  The  commission  lately  in  session  for  the  considera- 
tion of  the  various  branches  of  insane,  poor,  and  penal 
support,  reported  to  the  legislature  a  series  of  bills  so  far 
changing,  not  only  the  terms  of  responsibility  for  the  sup- 
port of  the  poor,  but  also  in  some  respects  the  very 
foundations  of  the  law,  that  at  first  view  a  consideration 
of  the  present  and  past  laws  of  liability  for  expenses  of 
poor  relief  would  seem  to  have  only  an  historical  value. 

SETTLEMENTS     FOR    THE     LIVING,    NOT    FOR     THE     DEAD. 

TAUNTON    V.    BOSTON. 

36.  But  the  decision  of  Judge  Lord  in  Taunton  v.  Bos- 
ton, 131  Mass.  18,  so  far  modified  the  past  and  existing 
law  of  the  State  that  for  a  long  time  to  come,  until  it  is 
reversed  or  qualified,  provisions  not  now  recognized  as 
part  of  the  active  law  will  continue  to  modify  and  change 
the  effect  of  the  present  provisions.  So  it  will  be  well  to 
carefully  consider  the  history  of  Taunton  v.  Boston  that 
we  may  apply  its  principles  to  the  cases  arising  in  the 
future,  in  so  far  as  they  come  within  its  scope ;  for  the 
repeated  reference  hereafter  to  be  made  to  this  important 
case  will  render  a  brief  statement  of  the  facts  on  which 
the  decision  was  based  very  useful. 

37.  The  question  was  whether  a  man  dying  without 
certain  rights  could  become,  by  laws  passed  after  his 
death,  vested  in  those  rights  so  as  to  convey  them  to  a 
minor  legitimate  child  who  was  still  living.  He  had  lived 
in  D.  from  1849  t0  ^65,  was  never  naturalized,  but  had 
paid  a  poll  tax  every  year.  He  moved  to  Z.  in  1865, 
and  died  there  in  1869,  having  lived  less  than  five  years 
there.  During  all  the  time  of  his  living  in  these  two 
places,  and  up  to  the  time  of  his  death,  citizenship  was  a 
necessary   condition  of   settlement ;  and   the  act  repeal- 


Division  One.]         SETTLEMENTS    FOR    THE    LIVING  2  J 

ing  that  condition  was  not  passed  until  1871,  two  years 
after  his  death.  The  case  did  not  arise  till  1879;  an^ 
the  question  to  be  decided  was  whether  this  legitimate 
daughter  was  settled  by  her  father's  ten  years  and  five 
taxes  in  D.  or  by  her  mother's  five  years  without  aid  in  Z. 
between  1872  and  1877,  the  family  having  been  aided 
there  in  1871,  and  lived  without  aid  1872-77. 

38.  The  decision  of  the  court  was  that,  unless  the 
statute  was,  in  unmistakable  terms,  retroactive  for  the 
widows  and  minor  children  of  men  no  longer  living,  as 
are  all  the  military  settlement  laws,  the  status  of  the  man 
and  of  those  claiming  by  him  was  fixed  by  the  status  at 
the  time  of  his  death,  and,  as  he  was  then  unsettled,  that 
the  daughter  gained  no  settlement  by  him.  And  it  would 
appear  to  follow  that,  though  an  amendment  were  pend- 
ing at  the  time  of  a  man's  death,  which  would  give  him 
a  settlement,  the  mere  fact  that  he  died  the  day  before  it 
passed  would  leave  his  family  as  though  he  had  done 
nothing  toward  acquiring  a  settlement,  simply  because  he 
had  so  died. 

39.  Now  suppose  the  case  of  one  foreign  born,  moving 
to  a  town  in  1858,  living  until  1872  in  a  place  in  Massa- 
chusetts, and  paying  poll  taxes  regularly.  Then  with  his 
family  he  goes  west ;  and  he  never  comes  back,  disap- 
pearing from  all  knowledge  of  men  in  1878.  Twenty  years 
after,  his  son  comes  back  to  the  State,  his  mother,  wife  of 
the  immigrant,  having  died  in  the  west  in  1873.  When 
he  falls  into  distress,  the  place  where  he  was  born  is  noti- 
fied ;  and,  if  that  town  works  the  law  as  it  is  to-day,  it  will 
require  to  know,  not  only  that  this  was  his  father  who  so 
lived  and  paid  those  taxes,  not  only  that  there  was  a  valid 
marriage  contract  between  his  father  and  his  mother,  but 
also  that  his  father  had  before  removal  lived  the  full  ten 
years  and  paid  five  poll  taxes  in  the  place  in  which  the 
settlement  is  claimed. 


2S  THE    SETTLEMENT    LAW 


[D 


40.  So  much  of  a  burden  does  the  law  of  settlement  in 
force  before  1874,  when  joined  with  the  terms  of  Judge 
Lord's  decision,  still  entail  upon  us ;  and,  if  that  part  of 
the  statute  of  1898  which  cuts  off  settlements  gained 
before  i860  should  not  be  modified  so  as  to  name  a  period 
as  late  as  1874,  the  same  questions  must  arise  for  many 
years  to  come. 

A    LIVING    MODE    OF    GAINING    A    SETTLEMENT    NOT 
INCLUDED    IN    CHAPTER    83. 

41.  Then  there  was  before  1874  a  provision  by  which  a 
person  gained  a  settlement  in  five  years  by  residence  and 
assessment  for  property  of  $200  in  value  during  the  same 
time,  even  when  no  tax  was  paid.  When  the  codification 
took  place  in  1878,  this  method  was  omitted,  probably  be- 
cause the  five  years  residence,  with  the  payment  of  three 
poll  taxes,  without  ownership  of  property,  was  in  1874 
made  to  give  a  settlement. 

42.  But  the  decision  of  Judge  Lord  gave  the  descend- 
ants  of  a  man  who  died  before  1878  as  good  a  chance  to 
prove  their  claim  through  his  assessment  for  personal 
property  as  though  that  were  still  part  of  Chapter  83. 

POSSIBLE    EFFECT    OF    TAUNTON    V.   BOSTON    ON    MILITARY 
SETTLEMENT    LAW. 

43.  The  student  cannot  be  counselled  too  earnestly  to 
consider  the  reasoning  and  results  of  that  decision,  for  its 
influence  on  present  and  future  legislation  is  by  no  means 
yet  at  an  end.  A  most  interesting  but  not  as  yet  directly 
mooted  question  in  connection  with  it  is  its  bearing  on 
certain  points  in  the  successive  provisions  of  the  remark- 
ably liberal  and  elastic  military  settlement  law.  It  will  be 
noticed,  upon  a  comparison  of  the  act  of  1865  and  1868 
with  that  of  1870,  and  of  all  these  with  the  codification  of 


Division  one.]     TAUNTON  V.  BOSTCN  IN  MIL.  SETTLEMENT     29 

1878,  that  there  has  been  a  considerable  change  in  the  re- 
quirements at  different  times. 

44.  Thus  in  1865  one  could  not  gain  unless  he  had  been 
a  resident  of  the  town  of  his  enlistment  for  six  months  be- 
fore the  enlistment,  nor  unless  he  had  attained  the  age  of 
twenty-one  years.  Under  this  rule  persons  applying  for 
aid  in  1866  were  deemed  to  have  no  military  settlement, 
if  they  had  been  hired  to  serve  on  the  town  quota,  not 
then  being  a  resident  for  the  specified  time  before,  or  if 
they  had  not  attained  their  majority  when  the  service 
begun. 

45.  Then  among  the  modifications  of  the  act  of  1868 
came  the  omission  of  the  previous  residence  requirement, 
with  a  retaining  of  the  age  clause,  which  also  disappeared 
in  1870.  The  number  of  persons  affected  by  these  two 
clauses  was  very  large,  in  that  relating  to  age  much  larger 
than  the  muster-rolls  indicate;  for  it  was  within  the  knowl- 
edge of  every  person  conversant  with  the  facts  that  many 
young  men  were  accepted  and  put  upon  the  roll  as  more 
than  twenty-one  who  lacked  two  or  three  years  of  that  age. 

46.  And  in  the  latter  part  of  1863,  when  the  town 
agents,  in  anticipation  of  the  draft,  were  covering  not 
only  the  loyal  States,  but  even  the  whole  of  the  South 
then  under  our  control  with  their  efforts  to  fill  their 
quotas,  it  came  about  that  many  men  served  a  year  on 
the  quotas  of  different  towns  who  never  had  lived  a  day 
in  Massachusetts. 

47.  It  is  not  designed  to  discuss  here  the  bearing  of 
that  decision  on  the  settlement  law  for  soldiers,  as  any 
remark  upon  that  subject  will  more  properly  come  under 
the  consideration  of  the  various  clauses  of  that  law,  and 
it  is  only  as  an  illustration  of  the  possible  effect  of  judicial 
interpretation  upon  legislation  apparently  dead  that  the 
topic  is  here  introduced. 


3<D  THE    SETTLEMENT    LAW  [Division  One. 

THERE    ARE    NO    TWO    HISTORIES    ALIKE. 

48.  The  variety  in  human  history  and  condition  being 
so  great,  it  may  be  of  little  use  to  attempt  to  show  how 
a  history  of  a  case  may  best  be  made  to-morrow  by  an 
illustration  of  how  one  was  made  yesterday.  The  return- 
ing traveller  who  sought  to  convey  an  idea  of  the  magnifi- 
cence of  the  Great  Pyramid  by  showing  a  brick  from  the 
ruins  had  no  more  limited  conception  of  his  powers  than 
has  the  writer  who  attempts  to  gather  the  million  varying 
conditions  which  enter  into  the  survey  of  this  question 
within  the  bounds  of  a  written  formula. 

49.  "The  short  and  simple  annals  of  the  poor"  is  a 
well-known  and  sounding  rhyme,  by  a  finical  dilettante 
poet,  more  intent  upon  a  musical  line  than  on  truth,  and 
having  no  knowledge  of  the  subject  of  which  he  wrote; 
for  it  may  much  more  truly  be  said  that  the  annals  of  the 
poor  are  neither  short  nor  simple,  but  as  extensive  as  the 
heredity  of  weakness  and  evil,  and  as  complex  as  the 
mingled  maze  of  temptation  and  environment  and  inheri- 
tance in  which  we  all  live. 

HISTORY    OF    A    FAMILY. 

50.  Still,  there  are  some  points  in  which  all  investiga- 
tions are  alike ;  and,  for  the  sake  of  them,  and  of  some 
familiarity  with  the  order  of  inquiry,  the  case  of  an  ordi- 
nary American-born  family  will  now  be  considered,  as 
offering  the  most  points  for  comment  and  instruction. 
The  decision,  as  will  be  seen,  is  in  the  terms  of  the  law 
before  1898. 

51.  A.  B.  was  born  in  L.  Mass.  on  Dec.  20  1856,  and 
became  of  age  Dec.  20  1877.  He  was  then  living  with 
his  father  in  B.,  owning  no  property,  but  paying  a  poll 
tax  until  Sept.  15  1882,  when  he  went  west,  having  paid 
a  tax  in  B.  from   1877  to   1882  inclusive,  six  taxes  in  all. 


Division  One.]  A    TYPICAL    HISTORY  3 1 

He  remained  west  until  December  1890,  when  he  came 
to  R.  Mass.  and  lived  until  July  1897.  He  owned  no 
property  in  R.,  but  paid  a  poll  tax  1893-4-5-6,  not  being 
assessed  in  1891  and  1892. 

52.  January  1896  he  was  sick,  and  received  aid  from 
the  overseers  of  the  poor  of  R.,  who  at  first  thought  it 
was  their  case,  as  he  had  lived  there  five  full  years  with- 
out aid  and  paid  three  taxes  in  those  five  years.  Reading 
the  statute  of  settlement,  they  could  not  see  at  first  how 
he  had  not  gained  there ;  but  happening  to  hear  of 
Taunton  v.  Wareham,  153  Mass.  192,  they  learned  that 
by  judicial  construction  of  the  statute,  it  is  necessary 
that  the  years  of  residence  and  taxation  should  be  iden- 
tical, and  that  there  should  be  no  moving  from  town  and 
no  aid  in  the  municipal  year  in  which  the  third  tax  is 
paid. 

53.  As  there  was  no  tax  in  the  first  two  years,  and 
as  the  1896  tax  was  assessed  and  paid  after  the  settlement 
was  interrupted  by  the  January  1896  aid,  it  followed  that 
all  three  of  the  taxes,  1893  1894  and  1895,  must  count 
to  give  the  necessary  three ;  and  as  he  was  aided  during 
the  municipal  year  of  1895, —  namely  before  May  1896, — 
it  followed  that  he  had  paid  only  two  that  would  count 
in  his  favor. 

54.  At  first,  being  new  in  the  business,  they  could  find 
nothing  in  that  statute  implying  that  aid  would  prevent 
settlement  in  any  place,  but  soon  learned  that  this  is 
a  principle  settled  by  uniform  judicial  construction  for 
two  centuries,  and  everywhere  accepted  as  based  upon 
sound  principle,  besides  being  affirmed  in  section  2 
chapter  83. 

Then  deceived  by  the  six  tax  bills  in  hand,  and  omit- 
ting to  make  a  careful  computation  of  age,  they  notified 
B.  of  five  years'  residence  there  with  three  taxes.  But 
that    town    easily    convinced    them    that    his    time   with 


32  THE     SETTLEMENT     LAW  [Division  One. 

them  did  not  begin  till  Dec.  20  1877,  when  he  became 
twenty-one,  and  that,  as  he  went  west  in  September  1882, 
he  lacked  three  months  of  completing  his  five  years  after 
majority  in  B. 

55.  Then  it  became  necessary  to  prove  whether  he  had 
derived  any  settlement,  as  it  was  conclusively  shown  that 
he  gained  none  in  his  own  right.  These  overseers  of  R. 
did  not  reason  that  the  wife  clearly  belonged  there,  even 
if  he  did  not,  because  she  had  lived  five  years  there  with- 
out  aid  and  was  thirty  years  old,  but  followed  straight 
back  along  the  male  line,  seeking  to  set  aside  all  those 
chances  before  coming  back  to  the  female  side. 

56.  They  found  that  his  father  was  then  sixty-six  years 
old,  was  born  in  R.  Mass.,  and  had  always  lived  in  the 
State  only  when  two  years  away  in  the  war,  when  his 
name  was  not  on  either  town  or  State  quota.  He  had 
never  owned  any  property  nor  held  any  town  office  by 
which  a  settlement  might  be  gained.  He  was  born  in 
1830;  and  up  to  the  time  of  his  marriage,  in  1855,  he  lived 
with  his  parents  in  S.  He  lived  in  no  place  more  than 
three  years  before  June  1868,  when  he  moved  to  B. 
where  he  lived  until  October  1883,  when  he  moved  to  C. 
where  he  lived  in  1896.  He  paid  a  poll  tax  every  year  in 
B.,  the  only  place  where  he  lived  five  years  before  his 
final  move  to  C.  Had  the  son  a  settlement  by  his  father  ? 
Clearly  not  in  C,  because  the  father  did  not  move  there 
till  six  years  after  the  son  was  of  age ;  and  all  the  son's 
right  to  hold  by  the  father  ceased  Dec.  20  1877.  They 
did  not  forget  that  point, —  that  the  subsequent  changes 
of  his  father  did  not  affect  the  son's  status  after  the  end 
of  the  boy's  minority.  So  the  next  question  was,  Had 
the  father  a  settlement  in  B.  at  that  date  ?  He  had  come 
to  B.  June  1868,  and  in  December  1877,  had  lived  there 
nine  and  a  half  years,  paying  only  a  poll  tax  each  year. 
If  it  could  be  shown  that  either  by  father  or  mother  he 


Division  One.]  A    TYPICAL    HISTORY  33 

had,  during  the  present  century,  had  a  settlement  in 
Massachusetts,  he  had  not  then  gained  a  new  one  in  B. ; 
and  the  son  could  take  none  from  him  there.  This  will 
appear  from  the  language  of  the  settlement  law  of  1874, 
passed  only  three  and  a  half  years  before  this  coming  of 
age,  which  clearly  sets  forth  the  conditions  of  its  applica- 
tion. Those  who  up  to  that  time  had  been  without  a 
settlement  might  have  the  advantage  of  its  retroactive 
clause,  and  enter  upon  one  at  once ;  while  those  who 
already  had  one  must  wait  five  years  before  changing  to 
a  new  one.  If  this  father  had  a  settlement  before  1868, 
he  would  not  enter  upon  a  new  one  until  June  1878,  six 
months  after  his  son  was  of  age.  That  is  to  say,  the 
father  was  under  the  terms  of  the  law  existing  before 
May  1874;  and  that  old  law  prescribed  ten  years  as  the 
term  of  residence.  If  the  father  had  moved  to  B.  in 
November  1866,  in  place  of  June  1868,  he  would  have 
completed  his  ten  years  while  the  son  was  a  minor,  and 
the  settlement  of  the  son  would  have  been  in  B.  in 
November  1876,  as  that  of  the  father  became,  under  the 
old  law,  in  June  1878. 

57.  So  there  was  no  claim  in  B.,  either  original  or  de- 
rived, if  any  earlier  settlement  could  be  shown,  and  the 
investigation  went  back  to  the  father  of  the  father.  He 
was  born  in  Massachusetts  in  1804,  and  died  in  S.  in 
1866.  He  lived  in  four  different  towns  in  the  State,  and 
in  three  was  a  settled  minister,  which  is  one  of  the  meth- 
ods by  which  settlements  are  gained.  But  here,  again, 
the  investigation  needed  care  and  a  comparison  of  dates  ; 
for  what  the  minister  did  after  his  son  was  of  age  had 
no  effect  on  the  son,  and  of  course  could  give  no  rights 
to  the  grandson.  The  son  was  born  in  September  1830, 
and  came  of  age  September  185 1.  His  father  was  settled 
in  A.  from  1832  to  1836,  in  T.  from  1837  to  1840,  gain- 
ing successive  settlements  in   those   towns ;   out   of   the 


34  THE    SETTLEMENT    LAW  [Division  One. 

State  1840-41  ;  preaching  but  not  settled  in  M.,  1841- 
43  ;  and  in  S.  from  1844  to  1866,  in  which  latter  year  he 
died,  settled  as  a  minister  and  as  a  citizen.  So,  as  the 
son  did  not  come  of  age  till  185 1,  it  was  easy  to  fix  the 
claim  in  S. 

58.  Now,  before  going  on  further  with  some  other  par- 
ticulars of  this  case, —  which,  having  found  the  responsible 
place,  are  matters  of  convenience  and  detail, —  it  will 
be  helpful  to  consider  next  the  changes  of  some  of  the 
younger  members  of  the  B.  family,  as  illustrating  the 
workings  of  the  law.  The  son  who  was  aided  in  R.  had 
a  brother  and  three  sisters ;  and  each  of  these  followed  a 
different  course,  in  regard  to  legal  responsibility  in  case 
of  aid,  from  his  own.  One  sister,  two  years  younger  than 
he,  born  1858,  was  not  of  age  when  her  father  completed 
his  claim  in  B. ;  and  she  was  settled  there  until  her  mar- 
riage, in  1882,  gave  her  a  new  claim,  under  the  first 
clause  of  derivative  settlements  by  her  husband,  in  an- 
other place.  A  sister  two  years  younger  than  she,  com- 
ing of  age  in  1881,  had  for  a  time  her  father's  claim  in 
B.,  but  soon  after  lived  five  years  in  W.,  and  gained  a  new 
one  for  herself  under  the  clause  applying  to  women  more 
than  twenty-one  years  old.  A  brother,  born  in  1862,  kept 
his  father's  claim,  while  he  himself  wandered  from  place 
to  place,  never  living  more  than  two  years  in  any,  between 
1883  and  1 89 1,  when  he  settled  in  B.,  and  completed  his 
five  years  there  in  May  1896.  If  he  had  fallen  into  dis- 
tress at  any  time  before  this,  he  would  have  fallen  back 
upon  the  settlement  of  1868-78.  Finally,  a  daughter  born 
in  1866  had,  at  her  birth,  her  father's  claim,  through  his 
father,  as,  of  course,  all  the  others  had  also  had  at  birth, 
then  derived  one  from  her  father  in  B. ;  and,  finally,  by 
marriage,  derived  one  from  her  husband  in  W. 


Division  One.]  QUESTIONS    OF    DOMICIL  35 

EFFECT    OF    STATUTE    OF    1 898. 

59.  Now,  while  the  dates  of  birth  and  majority  of  the 
eldest  son  in  the  B.  family  are  fresh  in  mind,  let  us  briefly 
consider  what  change,  if  any,  is  made  in  the  case  by  the 
statute  of  1898  section  1.  Is  he  one  whose  derivative 
settlement,  May  i  i860,  "prevented  a  subsequent  acqui- 
sition in  the  same  place,"  and  therefore  one  whose  settle- 
ment continues  ?  or  is  he  one  whose  claim  is  lost,  as  not 
having  been  renewed  by  acts  done  after  May  1  i860? 
There  is  nothing  in  the  act  of  1898  that  changes  the 
legal  effect  of  any  act  done  by  the  father  of  the  appli- 
cant, and  we  must  go  back  again  to  the  status  of  the 
grandfather. 

He  was  living  in  the  same  place  in  May  i860,  in  which 
he  bad  gained  a  settlement  as  a  settled  minister  before 
that  time ;  and  as  he  continued  to  live  there  more  than 
five  years  after  May  i860,  under  conditions  that  would 
have  gained  a  settlement  there  only  for  the  fact  that  he 
already  had  one,  the  conclusion  is  that  the  1898  law  does 
not  defeat  the  settlement  in  this  case. 

QUESTIONS    OF    DOMICIL. 

60.  But  it  may  be  that  our  investigation  is  not  so  easy 
as  the  tracing  of  the  B.  family  would  imply,  and  that 
more  careful  looking  at  the  history  of  the  applicant  is 
necessary.  As  stated  above,  it  is  impossible  to  predict  in 
what  phase  of  the  case  the  necessity  for  care  and  scrutiny 
will  occur ;  but  there  are  few  cases  in  which  it  does  not 
arise  in  some  form.  Did  a  marriage  take  place  ?  Could 
both  the  parties  legally  contract  marriage  ?  Did  they  live 
five  years  in  A.,  or  only  four  and  three-quarters  ?  When 
they  lived  in  A.  three  years,  then  moved  to  B.  for  six 
months,  and  back  to  A.  for  three  years  more,  was  there  a 
change  of  domicil  or  only  a  temporary  absence  with  pur- 


3©  THE    SETTLEMENT    LAW  [Division  One. 

pose  to  return  ?  When  they  owned  a  house  three  years, 
did  they  also  live  in  it  the  whole  of  the  same  three  ? 
These  and  many  other  considerations  will  be  in  the  mind 
of  the  visitor  while  he  completes  the  details  of  the  appli- 
cation. He  should  always  get  the  age,  birthplace,  and 
name  in  full,  because  the  applicant  may  give  his  name  as 
Harry  or  Frank ;  and  then  the  visitor  will  not  know 
whether  the  H.  Harrison  or  Benjamin  F.  that  he  finds  in 
the  directory  is  he  or  not.  When  a  man  says  his  name 
is  Chase  Delano,  and  one  finds  a  George  C.  Delano  living 
where  he  claims  residence,  it  raises  a  very  strong  proba- 
bility that  this  is  the  man,  but  does  not  establish  the 
desired  certainty.  It  is  very  desirable,  also,  to  learn  the 
full  name,  not  only  of  the  applicant,  but  of  all  others  con- 
nected with  the  case,  and  to  establish  carefully  the  dates 
of  all  the  events  recorded  on  the  paper.  Where  there  is 
a  question  of  time  of  residence  to  be  settled,  the  births 
and  deaths  of  all  children,  dead  as  well  as  living,  will  be 
useful ;  and  these  particulars  will  suggest  dates  and  places 
of  living  that  would  otherwise  be  established  with  diffi- 
culty or  not  learned  at  all. 

IF    POSSIBLE,  COMPLETE    THE    HISTORY  AT    THE   FIRST  VISIT. 

61.  It  cannot  be  too  earnestly  enjoined  to  make  the 
first  investigation  conclusive,  if  that  is  possible;  for  while 
the  worthy  poor  like  those  who  are  to  undergo  a  surgical 
operation,  nerve  themselves  up  to  it  and  bear  the  ques- 
tioning, however  close,  with  patience  and  fortitude,  if 
only  it  bids  fair  to  end  some  time,  yet  the  cases  are  not 
rare  when  a  repetition  of  the  visit  for  further  investi- 
gation is  very  impatiently  received,  and  the  applicant  is 
apt  to  think,  even  if  the  visitor  is  not  told,  that  the 
trouble  is  out  of  all  proportion  to  the  benefit.  Especially 
in  more  painful  personally  uncomfortable  details  is  this 
the  case ;  and  the  visitor  who  has  once  brought  his  ap- 


Division  One]      THE    MILITARY    SETTLEMENT    LAW  T>7 

plicant  to  be  confidential  with  him  must  not  be  surprised 
to  find,  when  he  fails  to  take  full  advantage  of  the  con- 
cession, that  it  is  impossible  again  to  secure  it. 

GENERAL    REMARK    ON    THE    MILITARY    SETTLEMENT 
LAW. 

62.  With  a  brief  examination  of  the  considerations  con- 
nected with  military  settlements  the  general  survey  of 
these  investigations  will  conclude;  and  it  is  well  that 
these  most  intricate  and  difficult  inquiries  should  last 
engage  our  attention,  and  make  a  permanent  impression. 
For  we  are  to  remember  that  the  military  claim  is  in 
some  sense  a  debt  due  from  the  State  to  those  who  came 
to  her  defence  when  she  stood  in  sore  need  ;  and,  while 
we  use  our  best  efforts  to  secure  the  benefits  of  the 
statutes  to  those  who  come  within  their  provisions,  we 
are  never  to  forget  that,  when  the  purpose  and  meaning 
of  the  acts  are  so  extended  and  warped  as  to  include  in 
their  limits  men  for  whom  they  never  were  intended, 
we  not  only  wrong  the  State,  but  we  also  degrade  and 
insult  the  honorable  company  of  true  soldiers  by  forcing 
into  their  association  the  unworthy. 

63.  Although  the  consideration  of  the  various  and 
sometimes  conflicting  provisions  of  the  military  law  will 
more  properly  come  under  the  general  review  of  the 
statutes  to  be  made  later,  it  will  here  be  of  service  to 
consider  briefly  the  history  of  the  law  and  the  more 
common  applications  of  its  provisions. 

CONDITIONS    UNDER    WHICH    MILITARY    SETTLEMENTS    WERE 
GAINED. 

64.  All  the  conditions  under  which  settlements  were 
acquired  by  military  service  contrasted  strongly  with 
those  by  which  civil  settlements  are  gained. 

The  hurry  and  disorder  attendant  upon  the  great  con- 


38  THE     SETTLEMENT     LAW  [Division  One. 

vulsion  of  1861  left  small  leisure  or  opportunity  for  care- 
ful records  ;  and  even  where  the  purpose  to  defraud,  for 
which  the  confusion  gave  too  much  chance,  did  not 
manifest  itself,  there  was  ample  scope  for  dispute  after- 
ward by  reason  of  incomplete  or  erroneous  record.  While 
in  civil  settlements  the  process  of  acquisition  was  slow 
and  hedged  in  by  ample  provision  of  known  law,  here  the 
settlement  might  be  acquired  in  a  day,  or  under  cover  of 
thick  night  when  no  witness  survived  to  give  evidence. 
While  under  civic  law  all  the  conditions  were  matter  of 
record  or  of  fact  not  too  difficult  to  be  verified,  here  the 
very  central  proof  might  be  hidden  in  the  confusion  and 
agony  incident  to  a  great  battle.  And,  finally,  while  the 
statutes  of  civil  settlement  had  been  substantially  in 
operation  since  the  beginning  of  the  century,  and  had 
always  been  prospective  in  their  effect,  these  laws  were 
put  in  operation  ex  post  facto,  and  were  made  to  apply  to 
the  dependents  of  men  who  had  been  dead  years  before 
they  were  enacted. 

CITIZENSHIP    NO    LONGER    ESSENTIAL. 

65.  It  is  interesting  to  note  that,  as  the  circumstances 
of  the  time  of  the  first  military  settlement  law  were,  in 
a  broad  sense,  revolutionary,  so  was  the  legislation  with- 
out parallel,  one  evidence  of  this  being  found  in  the  fact 
that  the  privilege  of  settlement,  heretofore  jealously  kept 
for  native  or  naturalized  citizens,  is  here  conceded  upon 
the  basis  of  honorable  military  service.  And,  while  the 
earlier  statutes  of  military  settlement  did  impose  some 
disabilities  of  residence  and  age,  the  ultimate  result,  not 
long  delayed,  was  that  any  person  who  had  been  willing 
to  bear  a  musket  for  a  year  in  the  service  of  the  repub- 
lic, and  had  so  conducted  himself  as  to  secure  an  honor- 
able discharge  at  the  end  of  that  time,  secured  by  that 


Division  One.]     STATUTES    NARROWLY    CONSTRUED  39 

act  a  permanent  claim  upon  the  municipality  on  whose 
quota  he  was  counted,  even  though  he  never  had  lived  a 
minute  in  the  State  and  could  not  speak  or  write  a  word 
of  the  English  language.  A  wider  departure  still,  per- 
haps, from  the  spirit  of  the  old  settlement  law  was  found 
in  the  fact  that  the  widows  and  orphans  of  men  long  dead 
were,  by  the  retroactive  force  of  the  law,  allowed  to  de- 
rive from  his  services  privileges  that  had  not  belonged  to 
the  soldier  in  life. 

THESE    JUST    STATUTES    NARROWLY    CONSTRUED    BY    THE 
TOWNS. 

66.  In  the  application  of  these  various  provisions  to 
existing  cases,  as  well  as  to  those  under  the  old  settle- 
ment law  before  the  Civil  War,  it  is  fair  to  say  that  the 
native  thrift  and  shrewdness  of  the  race  were  apparent  in 
the  acts  of  the  officers  of  the  different  municipalities; 
and  there  was  a  general  purpose,  in  all  cases,  to  be  sure 
that  the  case  in  hand  came  fairly  within  the  statute  pro- 
vision, and  even  that  the  statute  had  heretofore  been 
properly  construed.  For  it  is  only  recognizing  a  well- 
understood  trait  in  human  nature  to  admit  that  the  sense 
of  obligation  and  indebtedness  for  service  long  past  is 
one  that  is  hard  to  renew  and  keep  bright  year  after 
year,  especially  if  its  beneficiary  is  repulsive  or  vicious. 

This  fact  is  the  true  spring  of  the  vast  number  of  judi- 
cial decisions  in  the  last  thirty  years;  and  it  has  been 
fortunate  for  the  State,  as  well  as  for  the  true  soldier, 
that  all  of  these  rulings  have  borne  the  impress  of  the 
knowledge  of  military  usage  acquired  by  actual  service  in 
the  field  on  the  part  of  some  occupant  of  the  bench.  It 
is  much  to  be  regretted  that  the  wisdom  and  scope  of 
knowledge  which  characterized  the  late  Judge  Devens  can 


4-0  THE    SETTLEMENT    LAW  [Division  One. 

no  longer  be  invoked  in  the  settlement  of  difficult  points 
not  yet  foreseen,  and  especially  of  a  question  which  must 
at  some  time  arise  as  to  the  effect  of  a  late  federal  law,  to 
which  continued  allusion  will  be  made  under  the  head  of 
"  honorable  discharge, "  as  that  legislation  involves  the 
question  of  the  paramount  authority  of  State  and  national 
legislation. 

IMPERFECT  RECORDS  HAVE  MADE  MUCH  TROUBLE. 

67.  No  small  part  of  the  litigation  of  military  settle- 
ments became  inevitable  by  reason  of  the  imperfect  man- 
ner in  which  the  records  of  quotas  were  made.  We  must 
not  forget  that  fully  one-half  of  our  soldiers  and  more 
than  two-thirds  of  our  sailors  never  enlisted  on  any 
quota,  but  were  placed  to  the  credit  of  some  municipal- 
ity by  the  action  of  an  enrolment  board.  Until  1863, 
when  the  volunteering  energy  had  exhausted  itself,  there 
was  no  thought  of  relative  obligations  of  towns  in  the 
furnishing  of  men;  and  it  was  not  till  the  draft  cast  its 
possible  shadow  across  the  State  that  the  towns  began  to 
count  the  names  of  those  who  could  be  credited  to  them 
in  that  emergency. 

ASSIGNMENT    OF    MEN    ON    QUOTAS,     AND    THE    BOUNTY 

SYSTEM. 

68.  With  the  draft  came  the  rapid  increase  of  rates  of 
bounty,  which  now  changed  its  character  from  a  good- 
will present  to  a  direct  purchase-money,  which  grew  with 
the  price  demanded  in  each  successive  month,  sometimes 
in  an  inverse  ratio  to  the  personal  value  of  the  men  who 
received  it.  With  men  whose  monthly  wage  had  never 
been  above  $35  the  opportunity  to  secure  $1,200  or 
$1,800   at   a    stroke  brought  about  a  system  of  bounty 


Division  One.]  QUOTAS    AND    BOUNTIES  4 1 

jumping  and  desertion,  generally  under  assumed  names, 
that  greatly  increased  the  difficulty  of  determining,  in 
after  years,  the  relative  obligations  of  towns  and  the 
identity  of  enlisted  men.  At  one  time,  when  the  draft 
system  was  in  full  force,  the  officers  of  a  receiving-ship 
at  Brooklyn  conspired  with  the  worthless  men  who  were 
brought  in  through  its  operation;  and,  under  the  iniqui- 
tous plan  devised,  a  man  shipped  on  one  day  slipped  out 
of  the  ship  and  yard  the  same  night  under  the  conven- 
iently closed  eye  of  the  officer,  and  appeared  the  next 
morning  under  a  new  name,  and  with  $1,000  in  his 
possession.  Other  villains  of  the  same  kind  remained 
on  board  the  receiving-ship  for  a  week,  and  still  with  the 
connivance  of  officers  spent  the  nights  in  robbing  their 
shipmates  of  the  money  received.  It  was  estimated  at 
one  time  that  fully  one-third  of  the  Army  of  the  Poto- 
mac were  absent  and  unaccounted  for;  and  no  inconsid- 
erable portion  of  these  persons,  who  had  overstayed  fur- 
loughs or  sick-leaves  or  had  deserted  outright,  reappeared 
under  assumed  names  and  with  a  heavy  bounty. 

EXCEPTIONS  TO  THE  BENEFITS  OF  THE  LAW. 

69.  It  was  to  provide  for  such  cases  as  these  that  the 
settlement  law  divided  the  men  who  had  served  into  two 
classes,  the  worthy  and  the  unworthy,  and  provided  that 
none  of  the  latter  should  share  its  benefits. 

IMPERFECT  RECORDS. 

70.  But  it  was  not  only  in  cases  of  fraud  that  difficul- 
ties arose  in  the  application  of  the  settlement  law. 
Many  cases  occurred  in  which  young  men  enlisted  under 
assumed  names  for  the  purpose  of  eluding  the  objections 
of  their   friends;    and  in  all   these,  especially  where  the 


42  THE    SETTLEMENT    LAW  [Division  One. 

soldier  lost  his  life,  the  necessary  proof  of  identity  was 
difficult,  sometimes  impossible  to  secure.  The  incapac- 
ity of  the  officers  whose  duty  it  had  been  to  make  the 
records  of  the  men,  increased,  in  many  cases,  the  confu- 
sion ;  and  in  one  instance  a  clergyman  of  the  highest 
worth,  who  out  of  his  natural  modesty  and  simplicity 
shouldered  his  musket  as  a  private  and  marched  to  his 
death  at  Chancellorsville,  by  some  unhappy  chance  got 
returned  as  a  deserter,  and  still  so  appears  on  the  printed 
official  record. 

The  same  imperfection  of  record  made  it  possible  for  a 
man  who  was  left  behind  at  Alexandria  when  his  regi- 
ment sailed  for  New  Orleans,  who  was  forwarded  to  his 
regiment  and  thereafter  served  three  years,  with  honor- 
able discharge,  to  be  finally  mustered  out  with  the  origi- 
nal record  uncorrected;  and  that,  too,  stands  against  his 
name  to  this  day. 

CONCLUSION THE    WORK    OF    THE    VISITOR. 

71.  The  various  amendments  that  the  law  of  military 
settlement  has  undergone  in  the  matter  of  discharges  for 
disability  will  be  more  properly  considered  under  the 
technical  comment  on  the  statute;  and  this  general  in- 
troduction will  here  close  with  some  remarks  upon  the 
value  and  dignity  of  the  work  of  the  professional  paid 
visitor  among  the  poor,  and  an  historical  survey  of  the 
changes  in  the  field  of  public  relief  in  Boston  and  the 
State  in  the  last  thirty  years.  This  seems  the  more 
proper  and  necessary  because  the  great  extension  of  in- 
terest in  the  welfare  of  our  dependent  population,  among 
the  prosperous  and  well-to-do,  has  begotten  in  some 
circles  the  thought  that  the  unpaid  voluntary  work  of  the 
amateur  must  have  a  higher  value  than  that  of  the  regu- 


Division  One]  THE    VISITORS    WORK  43 

lar  visitor,  because  done  with  more  heart  and  sympathy, 
and  without  any  suggestion  of  the  perfunctory  official 
routine  of  the  paid  visitor.  This  assumption,  that  the 
fact  of  continuous  occupation  with  that  of  compensation 
for  the  service  rendered  raises  a  presumption  against 
the  quality  of  the  work  done,  is  a  most  curious  perversion 
of  reasoning,  so  entirely  without  a  parallel  in  any  other 
human  occupation  that  one  can  only  wonder  how  it  came 
into  existence.  In  what  other  business  is  experience 
considered  a  drawback?  Where  shall  we  find,  in  any 
other  sphere  of  occupation,  a  thing  more  highly  valued 
because  it  costs  nothing  and  is  held  by  its  producer  at 
no  higher  rate?  Far  older  and  wiser  than  this  modern 
theory  is  the  axiom  that  the  laborer  is  worthy  of  his  hire ; 
and  it  will  not  be  until  we  discard  surgeons  because  they 
have  grown  hard-hearted  in  their  long  familiarity  with 
suffering  that  we  shall  come  to  believe  that  the  heart  of 
the  visitor  grows  more  callous  to  the  tale  of  sorrow  by  its 
often  repetition.  In  truth,  the  only  real  ally  of  these 
advocates  of  amateur  visiting,  as  conflicting  with  proper 
efficient  official  visiting,  is  the  fraudulent  impostor;  and 
he  is  the  natural  enemy,  not  only  of  the  careful  visitor, 
voluntary  or  official,  but  of  the  human  race. 

72.  As  usual,  the  truth  seems  to  lie  between  the  ex- 
tremes of  statement ;  and,  while  it  is  not  true  that  a  pur- 
pose to  do  good  and  a  willingness  to  sacrifice  the  per- 
sonal convenience  of  the  visitor  to  the  good  of  the  poor  will 
in  any  degree  prevent  the  mischief  that  unwise  counsel 
will  surely  do,  it  is  true  that  the  fact  that  a  person  is 
paid  for  it,  does  not  make  poor  service  good. 

The  spirit  and  purpose  and  capacity  which  the  visitor 
brings  to  his  work  will  determine  the  measure  of  his  suc- 
cess, and  the  pecuniary  conditions  under  which  the  work 


44  THE    SETTLEMENT    LAW  [Division  One. 

is  done  will  be  seen  to  have  much  less  to  do  with  its 
quality  than  has  been  believed  by  some  persons  who  have 
assumed  that  official  work  is  necessarily  lacking  in  heart 
and  earnestness. 

7$.  Ten  years  from  this  time,  when  the  visitors  and 
officers  of  these  voluntary  societies  who  have  been  in  the 
work  for  that  length  of  time  are  confronted  with  the 
proposition  of  some  enthusiastic  recruit  that  their  knowl- 
edge and  experience  have  so  far  compromised  their  use- 
fulness that  they  are  unfitted  for  farther  service,  they 
will  see  a  fallacy  in  the  reasoning,  perhaps  before  un- 
suspected. If,  among  the  well-to-do,  the  isolation  that 
comes  with  advancing  years  by  the  death  of  friends 
makes  a  calamity  of  the  loss,  how  much  greater  is  that 
the  fact  among  the  worthy  poor!  How  much  this  mis- 
ery is  alleviated  by  the  sympathy  of  the  friendly  visitor, 
let  the  free  answer  of  all  visitors  in  every  town  decide; 
and  there  is  no  risk  in  assuming  that  they  will  speak 
with  one  voice.  When  resignation  or  death  or  change  of 
field  brings  a  new  face  to  the  house  of  the  poor,  the  fact 
is  sure  to  be  noticed,  and  some  remark  to  be  dropped  that 
testifies  to  the  fact  that  the  official  relation  has  become  a 
personal  one  also,  which  the  patient  is  sorry  to  see  ended. 
All  the  possible  advantages  come  to  the  permanent  vis- 
itor ;  for  each  visit  begins  where  the  last  left  off,  and  his 
usefulness  increases  with  his  knowledge.  All  of  this, 
not  because  he  is  paid,  but  because  he  is  permanent,  and 
always  in  his  field  of  labor.  To  many  of  his  clients  he 
is,  and  always  must  be, 

"  Father  and  mother  both,  and  children,  all  in  one." 

74.  Meanwhile,  if  the  faithful  visitor,  paid  or  volun- 
tary, wisely  labors  to  strengthen  the  feeble  purpose  of 


Division  One.]  THE    FIELD    OF    LABOR  45 

his  charges,  to  give  them  patience  in  their  unavoidable 
sorrows,  to  fan  into  active  life  some  lingering  spark  of 
self-respect  or  pride  or  desire  for  better  things,  if  he  is 
kind  even  to  the  unthankful  and  the  evil,  if  he  is  com- 
passionate to  weakness  and  sorrow,  he  may  justly  claim 
a  humble  share  in  that  work  and  plan  that  shall  at  last 
wipe  away  all  tears  from  the  eyes. 

THE    FIELD    OF    LABOR    IN    THE    LAST    THIRTY    YEARS. 

75.  Since  1865  the  population  of  Massachusetts  has 
more  than  doubled,  going,  in  round  numbers,  from 
1,200,000  to  2,500,000  by  the  1895  census;  while  by 
the  same  authority  Boston  has  increased  nearly  threefold, 
going  from  192,000  in  1865  to  496,000  in  1895.  While 
this  increase  is  due,  to  a  large  extent,  to  immigration 
and  internal  growth,  its  great  cause  is  to  be  found  in  the 
annexation  of  suburban  places. 

ANNEXATIONS    TO    BOSTON. 

In  1866,  save  for  the  annexation  of  Dorchester  Heights 
in  South  Boston  early  in  the  century,  the  territorial  lines 
of  Boston  remained  as  they  had  been  from  the  beginning, 
changing  their  curves  only  as  the  levelling  of  some  hill 
pushed  the  building  line  over  marsh  or  toward  the  sea. 
But  in  1868  Roxbury  with  30,000,  in  1869  Dorchester 
with  11,000,  and  in  1874  Brighton  with  5,000,  West 
Roxbury  with  9,000,  and  Charlestown  with  30,000  be- 
came parts  of  Boston,  and  added  nearly  100,000  to  its 
population. 

These  places  all  brought  to  Boston  their  quotas  of 
poor  persons;  and,  while  the  less  exact  methods  of  the 
boards  of  relieving  officers  in  the  different  places  some- 
times allowed  larger  amounts  of  aid  than  have  been  given 


46  THE    SETTLEMENT    LAW  [Division  One. 

since  annexation,  it  is  not  true  that  annexation  has  in- 
creased the  aggregate  burden  of  poor  relief.  Rather  is  it 
true  that  in  any  given  ten  or  one  hundred  families  con- 
sidered, the  per  cent,  of  persons  applying  in  most  of  the 
annexed  territory  will  be  less  than  in  the  city  proper. 
When  the  conditions  in  which  the  poor  of  Boston  lived 
before  1872  are  considered  and  compared  with  the  present 
fact,  a  great  change  for  the  better  is  seen.  Philanthropy 
has  had  its  full  share  in  bringing  about  this  change;  but 
business  necessity  and  the  inexorable  demands  of  trade 
have  done  more  than  all  other  influences  to  destroy  the 
abodes  in  which  the  poor  were  herded  in  the  Cove  Dis- 
trict, before  the  great  fire. 

THE    COVE    DISTRICT. 

There  were  tenements  in  narrow  Utica  or  Tufts  Street 
where  the  sun's  light  never  entered,  where  the  visitor 
groped  his  way  up  filthy  stairways,  breathing  at  every 
step  the  odors  from  defective  water-closets  or  from  the 
grosser  forms  of  personal  filth  that  such  living  makes 
easy,  to  the  low-ceilinged  rooms  above  where,  with  abso- 
lute absence  of  ventilation,  the  miserable  consumptive 
breathed  out  his  last ;  and  in  North  Margin  Street  and  in 
Institute  Avenue  one  could  find  many  no  better. 

THE    NORTH    END. 

On  a  winter  day  in  1872  a  visitor  saw  a  poor  widow  on 
the  water  side  of  North  Street.  Her  tenement  consisted 
of  two  rooms  in  the  basement,  reached  by  a  short,  un- 
paved  incline  from  the  street.  In  front  of  the  door  was 
a  plank  on  edge,  half  a  foot  higher  than  the  ground  in 
the  passageway  and  a  foot  higher  than  the  door-sill. 
This  kept  the  water  from  flowing,   with   every  shower, 


Division  One.]  A    PAST    CONDITION  47 

into  the  basement.  The  cellar  into  which  the  door  led 
was  without  floor  or  furniture  of  any  kind;  and  the  parti- 
tion between  that  and  the  apartment  partly  under  the 
sidewalk,  had  merely  a  step  to  it  and  an  aperture  through 
it,  but  no  door.  The  floor  of  this  inner  apartment  was 
raised  from  the  ground  a  foot  or  more,  and  on  a  mattress 
on  it  lay  the  sick  woman  with  her  two  children.  There 
was  no  fire  in  the  room,  nor  did  the  furnishings  include 
a  water-closet;  and  the  condition  of  the  air,  by  reason  of 
the  disease  of  the  bowels  from  which  the  poor  woman  was 
suffering,  was  indescribable. 

ENLIGHTENED. 

Such  a  condition  in  Boston  is  now  as  certainly  a  thing 
of  the  past  as  is  the  long  truck  with  four  horses  tandem 
or  the  hand  fire-engine,  and  the  larger  corps  of  visitors 
sent  out  by  the  overseers  of  the  poor  in  Boston  now  have 
to  meet  few  or  no  cases  so  miserable  as  this.  No  one 
organization  or  force  can  claim  all  the  credit  for  the 
change,  for  it  is  the  result  of  different  though  often  co- 
operating agencies.  The  visitors  of  the  overseers,  when 
they  find  persons  temporarily  thus  cast  away,  themselves 
continually  advise  and  bring  about  removal  to  better 
places  of  abode  as   a   condition  of  aid. 

The  police,  under  continual  official  pressure,  act  as 
inspecting  officers,  reporting  at  the  office  of  the  overseers 
the  bad  cases  of  which  they  learn;  while  the  Board  of 
Health,  with  courageous  energy,  confronts  the  thought- 
lessness of  mercenary  landlords  and  middlemen  with 
decrees  that  can  be  neither  transgressed  nor  ignored ;  and 
private  societies  and  individuals,  under  no  stimulus  other 
than  that  supplied  by  kind  hearts  and  unselfish  devotion, 
gauge  and  peek  in  every  alley  and  dark  corner,  and  bring 


48  THE    SETTLEMENT    LAW  [Division  One. 

the  accidents  and  the  emergencies  of  poverty  to  the  atten- 
tion of  those  who  will  investigate  and  do  the  needful 
thing  in  the  best  manner. 

PRIVATE    CHARITABLE    SOCIETIES. 

j6.  Under  this  name  are  included  all  the  hundreds  of 
organizations  that  provide  for  the  alleviation  of  every 
possible  form  of  human  suffering  and  want,  in  and  around 
Boston.  To  enumerate  them  and  to  set  forth,  even  in 
the  briefest  way,  the  aim  and  work  of  each  would  require 
more  space  than  is  used  in  all  this  book;  and  the  reader 
is  referred  to  the  excellent  Directory  of  Charities  for 
further  information.  Here  only  those  whose  work  and 
location  bring  them  into  official  co-operation  with  legal 
relief  will  be  mentioned,  though  there  are  few  or  none 
which  are  not  at  some  time  in  helpful  relations  with  it. 

The  Provident  Association,  the  Howard  Benevolent, 
and  the  Young  Men's  Benevolent,  among  the  older  organ- 
izations, can  better  meet  off-hand  many  of  the  sudden 
emergencies  of  poverty  and  accident;  while,  among  the 
societies  newer  either  in  co-operation  or  origin,  the  Saint 
Vincent  de  Paul  in  the  city  proper  and  in  all  the  subur- 
ban councils,  the  Employment  Bureau,  and  the  Hebrew 
Benevolent  care  for  many  cases  and  tide  them  over  emer- 
gencies, so  that  they  never  appear  upon  the  public  relief 
records. 

Besides  these,  nearly  all  the  annexations  have  brought 
the  resources  of  the  local  charities  of  each  place  within 
the  scope  of  the  consolidated  city;  and,  though  these  are 
generally  available  only  within  the  limits  of  the  original 
town,  they  are  none  the  less  useful. 


Division  One]  VOLUNTARY    SOCIETIES  49 

ASSOCIATED    CHARITIES. 

77.  Nor  would  any  account,  however  superficial,  that 
makes  pretence  to  a  review  of  the  present  system  of  char- 
ity and  the  changes  that  have  occurred  in  the  last  thirty 
years,  have  any  just  claim  to  being  satisfactory  which 
omitted  to  speak  of  the  Associated  Charities,  that  latest 
growth  of  philanthropic  purpose,  which  covers  all  the 
territory  of  all  the  cities  and  larger  towns  in  the  State, 
and  proposes  to  itself  no  less  a  task  than  to  make  itself  a 
federation  of  all  the  charities  in  each, 

"  Distinct  like  the  billows  and  one  as  the  sea." 

In  its  ranks  throughout  the  State  will  be  found  a  full 
proportion  of  those  who  are  willing  to  give  time  and  per- 
sonal strength  for  the  welfare  of  those  less  fortunate  than 
themselves. 

Probably  those  who  devised  this  plan  did  not  expect 
full  success  in  it;  for  they  knew  enough  of  human 
nature  to  show  them  that  the  different  aims,  theories,  and 
bases  of  action  of  the  different  organizations  who  were  to 
be  represented  at  its  council  board  would  forbid  that 
unity  of  sentiment  and  purpose  that  is  essential  to  co- 
operation. Thus,  if  one  believes  that  public  aid  is  too 
large  and  too  free,  and  another  that  more  should  be 
given,  and  with  less  scrutiny,  it  is  hard  to  see  how  one 
can  consent  to  be  directed  or  superseded  by  the  other. 

But  there  is  one  department  of  usefulness  in  the  work 
of  this  society  to  which  every  relief  organization  owes  a 
debt  that  should  be  freely  acknowledged, —  namely,  in  its 
statements  to  each  of  what  other  societies  or  persons  are 
doing  for  a  given  case;  and  it  is  no  more  than  mere  jus- 
tice to  say  that  much  of  the  mischief  of  uninvestigating 
private  almsgiving  has  come  to  an  end  through  its  means. 


50  THE     SETTLEMENT     LAW  [Division  One. 

yS.  If  another  development  of  the  activity  of  this  soci- 
ety—  namely,  its  volunteer  visiting  scheme  —  cannot  be 
commented  upon  with  unqualified  commendation,  that 
fact  may  readily  be  accounted  for  by  assuming  some  pro- 
fessional bias  or  prejudice  of  which  the  writer  is  uncon- 
scious; and  thus  the  criticism  will  fall  to  the  ground  and 
harm  no  one.  But  there  are  some  principles  of  human 
action  and  influence  that  admit  no  limitations  or  ex- 
cuse, and  these  break  over  all  conveniences  and  conven- 
tionalities as  the  springtide  covers  the  Lynn  marsh. 
If  the  conditions  of  this  plan  are  such  as  oppose  the 
experience  and  practice  of  two  hundred  years,  of  officials 
neither  hard-hearted  nor  stupid,  it  must  be  that  there  is 
still  something  to  be  said  for  the  ancient  usage. 

79.  The  fact  that  one  has  will  and  time  to  perform 
daily  and  continued  free  visiting  duty  among  the  poor 
implies  in  all  but  the  smallest  proportion  of  visitors 
that  it  is  a  coming  down, —  a  temporary  tour  in  a  lower 
walk  in  society.  That  is  not  truer  of  him,  however, 
than  of  the  paid  official  or  of  the  dispensary  doctor;  but 
the  advantage  that  they  have  is  that  their  field  covers  a 
hundred  cases,  while  his,  by  the  terms  of  his  service,  is 
confined  to  three  or  five  families.  They  have  the  essen- 
tial help  of  comparison,  of  gauging  the  similar  or  differ- 
ing conditions  of  many,  and  so  of  arriving  at  an  average; 
while  he,  unless  his  field  of  duty  is  often  changed,  must 
make  absolute,  and  not  comparative,  judgments.  While 
that  defect  is  not  so  serious  in  its  practical  effects  as  it 
would  be  if  the  visitor  were  also  an  almoner,  and  not  an 
adviser,  it  is  not  without  its  drawbacks  with  him. 

It  does  not  follow,  because  a  visitor  habitually  lives  in 
conditions  much  better  than  those  of  the  unfortunate  per- 
sons whom  he  sees,  that  he  is  to  carry  down  into  their 


Division  One]  PAID    AND    UNPAID    VISITORS  51 

cheerless  homes  the  measuring  wand  of  his  own  daily 
living,  and  to  attempt  to  adjust  the  conditions  of  these 
to  the  consideration  of  how  much  himself  would  suffer  if 
deprived  as  these  are.  But  the  experience  of  some  re- 
lief officers  near,  but  not  in  Boston,  has  been,  in  years 
past,  that  the  advent  of  the  volunteer  visitor  was  followed 
by  the  flocking  to  the  relief  officers  of  recruits  who 
learned  for  the  first  time  of  their  visitors  how  wretched 
their  condition  was  and  how  much  they  stood  in  need  of 
immediate  relief. 

VISITING    BY    PAID    AGENTS. 

80.  It  would  not  appear  that  the  plan  of  paid  visitors 
among  the  poor,  other  than  the  overseers  themselves  or 
agents,  had  yet  greatly  approved  itself  to  the  local  author- 
ities of  the  cities  and  towns;  for  it  is  believed  that  less 
than  ten  places  in  all  the  State  employ  one.  Indeed,  the 
practice,  as  seen  by  a  visitor  from  place  to  place,  displays 
all  the  successive  methods  through  which  the  different 
municipalities  have  passed;  and  a  considerable  proportion 
of  the  places  will  be  found  to  come  under  one  of  four 
classes.  The  first  division,  into  which  most  of  the  smaller 
towns  still  fall,  elects  overseers  of  the  poor;  but  no  one  of 
the  board  systematically  visits  the  poor  in  their  own 
homes.  Those  in  the  almshouse  are  much  better  known 
about.  No  one  is  in  charge  of,  or  sufficiently  well  versed 
in  settlement  matters  to  be  responsible  that  the  law  is 
correctly  worked,  and  everything  is  in  disorder  so  far  as 
this  department  of  duty  goes. 

In  the  next  division  come  most  of  the  larger  towns. 
These  generally  make  the  selectmen  also  overseers  of 
the  poor;  and  one  of  their  number  is  by  the  rest  of  the 
board  assigned  to  the  care  of  this  department,  as  another 
may  be  to  the  special  oversight  of  some  other  division. 


52  THE    SETTLEMENT    LAW  [Division  One. 

This  plan  has  its  advantages  over  the  other,  in  that  it  is 
the  duty  of  some  one  man  to  know  about  things;  and,  if 
one  needing  to  do  business  with  the  town  can  find  the 
right  man,  he  will  probably  find  the  work  reasonably 
well  done.  Still,  in  a  large  majority  of  cases  in  this 
class  the  visitor  sees  that  the  member  going  with  him  to 
visit  goes  for  the  first  time,  and  knows  that  the  interests 
of  his  own  municipality  are  not  half  so  well  safeguarded 
there,  as  are  those  of  the  visited  place  in  his  own  city. 
Neither  this  class  nor  the  other  have  generally  any  head- 
quarters exxept,  perhaps,  for  a  single  day  or  evening  in 
the  month,  the  relieving  office  being  the  home  or  place 
of  business  of  the  overseer  in  charge. 

The  third  class,  including  all  the  cities  that  do  not 
fall  in  the  fourth,  maintain  relief  officers  with  the  title 
of  clerk  or  almoner  or  secretary,  and  generally  provide 
for  open  doors  in  business  hours.  The  singular  fact 
about  some  members  of  this  class  is  that,  passing  through 
the  experience  of  number  two  and  learning  the  advantage 
of  making  some  one  man  responsible  for  the  relief  given, 
they  do,  nevertheless,  after  choosing  an  executive  officer, 
keep  his  relieving  duties  to  themselves,  and  aid  the  poor 
in  their  own  wards,  as  though  they  had  no  almoner. 
Thence  it  comes  about  that  all  the  cases  that  require 
prompt  action  toward  the  State  or  toward  other  towns,  in 
order  to  save  the  rights  of  his  own  city,  are  left  to  the 
memory  of  a  business  man,  who  already  has  too  much  to 
think  of;  and  thus  much  loss  of  money  and  of  responsi- 
bility ensues.  Add  to  this  the  fact  that  when  Mr.  G.  is 
aiding  the  father  and  two  sons  in  Ward  3,  because  the 
mother  has  gone  off  with  the  girls,  Mr.  N.  is  aiding  the 
mother  and  girls  in  Ward  2,  because  the  father  has  de- 
serted the  family.      This  is  carrying  the  Scripture  in- 


Division  One.]  NECESSITY    FOR    VISITS  53 

junction  a  step  too  far, — when  the  right  hand  not  only 
does  not  know  what  the  left  hand  is  doing,  but  not 
clearly  what  it  is  doing  itself.  The  convergence  of  the 
X-rays  of  evidence  in  one  relief  office  saves  all  such  dis- 
graceful errors  as  this. 

The  last  class,  in  which  the  visiting  agent  (except  in 
cases  of  emergency,  which  are  always  provided  for  in  ad- 
vance), reports  to  a  responsible  executive,  would  seem  to 
have  many  advantages  over  either  of  the  others.  The 
ideal  plan,  perhaps,  would  be  that  the  executive,  whether 
under  the  name  of  secretary,  agent,  or  almoner,  should 
also  be  the  visitor;  for  it  is  quite  impossible  to  sum  up 
all  the  essential  evidence  that  a  visitor  gets  in  half  an 
hour's  investigation  in  ten  lines  of  written  or  five  min- 
utes of  verbal  report,  and  thus  much  that  is  of  vital  im- 
portance in  the  management  of  a  case  is  lost.  Still 
more  is  this  the  fact  when  the  responsibility  is  trans- 
mitted through  the  executive  to  the  supreme  board,  who 
pass  judgment  on  two  hundred  cases  in  an  hour.  While 
in  the  greater  part  of  the  cities  in  this  class  it  would  not 
be  possible  to  secure  the  great  advantage  of  this  combi- 
nation of  visitor  and  almoner,  for  the  reason  that  the  lapse 
of  time  in  clerical  duty,  and  in  listening  to  the  talk  of 
applicants  and  their  friends  to  whom  time  has  no  value, 
would  leave  no  margin  for  visiting  by  a  secretary,  there 
seems  to  be  no  reason  why  it  might  not  be  universally 
applied  by  class  three,  with  the  result  of  a  great  increase 
of  efficiency.  The  supreme  board,  that  convenient  blind 
behind  which  uncomfortable  responsibility  is  mitigated 
or  lost,  will  still  go  on  with  the  coach ;  but  the  decision 
of  a  given  case  must  in  the  last  resort  depend  upon  the 
result  of  a  visit,  and  the  more  fully  the  grounds  of  that 
opinion  are  represented  in  the  conclusion,  the  better  for 
all  affected. 


54  THE    SETTLEMENT    LAW  [Division  One. 

It  was  the  remark  of  a  wise  and  kind  almoner  of  pri- 
vate charity  in  Boston,  more  than  half  a  century  ago,  that 
he  could  break  the  desire  for  self-support  and  indepen- 
dence of  the  best  family  on  his  list  by  giving  it  a  half- 
cord  of  wood  at  the  wrong  time;  and  the  observation  is 
worthy  of  long  remembrance  by  the  conscientious  visitor. 
He  knows,  as  no  one  else  can  know,  how  the  aid,  at  first 
received  with  tears  and  protests,  soon  comes  to  be  reck- 
oned as  a  part  of  the  permanent  income,  and  sees  evasion, 
misstatement,  and  downright  deception  laying  waste  the 
future  of  his  client.  His  noblest,  if  hardest  and  most 
thankless  work,  will  be  in  process  of  accomplishment 
when  he  is  dragging  his  protesting  dependent  from  the 
place  where  he  now  seems  content  to  lie,  and  to  lie  for- 
ever, back  to  the  firm  land.  When  a  son  by  selling 
papers  after  school,  or  a  daughter  as  cash-girl,  earns  no 
more  than  half  what  the  weekly  aid  has  been,  he  will  insist 
on  making  the  fact  of  earning  plain  in  some  decrease  in 
allowance  ;  and  when,  the  evil  spirit  of  dependence  on  the 
public  having  at  last  gone  forth,  the  patient  sits  clothed 
and  in  his  right  mind,  if  it  is  not  in  human  nature  for 
him  to  thank  his  visitor,  the  latter  may  be  sure  of  an 
approval  that  is  worth  more  than  the  voice  of  all  the 
world  besides.  When  the  poor  person  has  taken  the  first 
step,  and  has  seen  that  no  trouble  has  followed,  the 
battle  is  more  than  half  won ;  for  it  is  generally  an  honest 
fear  with  which  the  visitor  contends,  and  the  recipient  of 
aid  cannot  see,  with  the  children  one  year  older  and 
eating  more,  how  this  small  earning  can  warrant  any 
reduction. 

"The  destruction  of  the  poor  is  his  poverty,"  for  he 
daily  pays  more  for  and  gets  less  of  what  he  buys;  but 
the  conditions  of  his  mind  also  tend  to  destroy  him.      If 


Division  One.]    THE    NECESSITY    OF    CAREFUL    GIVING  55 

he  could  see,  as  his  faithful  visitor  can  see,  how  each 
slight  improvement  in  his  condition  may  bring  him  back 
to  independence,  he  would  need  no  help;  but  to  him  the 
week  in  which  aid  can  be  decreased  is  always  the  next 
week,  and  never  this  week. 

CASE    CITED. 

81.  In  one  of  the  larger  cities  there  was  living,  thirty 
years  ago,  a  widow  of  good  character  and  family,  with 
two  sons.  The  older,  eighteen  years  old,  was  in  a  scien- 
tific school,  and  the  younger,  fifteen  years  old,  also  at 
school.  The  mother  earned  what  she  could  at  a  time 
when  there  were  fewer  paying  places  for  ladies  than  now, 
and  was  glad  to  learn,  at  last,  of  a  sum  of  money  held  by 
trustees,  from  which  she  could  receive  a  yearly  allow- 
ance. She  received  this  money  and  used  it  prudently 
for  five  years,  in  which  she  was  living  in  some  place 
near,  but  so  inaccessible  that  in  all  the  time  she  was  not 
seen  in  her  home.  Then  a  point  was  made  of  looking 
her  up  and  finding  out  the  changes,  if  any,  in  her  condi- 
tion. The  house  in  which  she  lived  was  seen,  on  visit- 
ing, to  have  her  name  on  the  door-post,  and  in  the  town 
in  which  it  stood  was  worth  $4,000.  She  answered  all 
questions  frankly  and  squarely,  and  there  was  no  desire 
to  mislead  or  conceal. 

The  visitor  relates  the  conversation  thus:  "I  see  your 
family  name  on  the  door-plate.  To  whom  does  the 
house  belong?"  "To  my  son."  "Does  he  own  it 
clear?"  "Yes."  "What  is  his  business?"  "He  is 
a  civil  engineer."  "About  what  does  he  earn  ?"  "I 
do  not  know  exactly  now.  A  year  ago  it  was  $1,800  a 
year."  "What  family  has  he?"  "A  wife  and  one 
child    and   myself."      "Where   is    your  younger  son  ?" 


56  THE    SETTLEMENT    LAW  [Division  One. 

"Away,    a    clerk,    caring    for   himself."       "Mrs.  , 

do  you  suppose  you  would  have  to  go  without  anything 
you  now  have  if  you  did  not  get  that  money  next  year?  " 
"Oh,  no,  I  presume  not."  "Now,  if  there  is  some  other 
widow  without  a  son,  who  needs  that,  don't  you  think 
you  would  be  somewhat  standing  in  her  way  if  you  con- 
tinued to  receive  it?"  "Well,  I  might  feel  so  under 
some  circumstances;  but  now  I  give  away  every  year 
nearly  as  much  as  all  that  amounts  to." 

From  what  the  visitor  related  of  this  lady's  antece- 
dents and  character,  it  was  clear  that  here  there  was 
more  blame  in  the  failure  to  follow  the  case  up  in  past 
years  than  in  the  person  aided. 

ANOTHER    CASE. 

82.  Another  case  illustrates  another  phase  of  experi- 
ence. A  woman  with  a  large  family  lost  her  husband  by 
sudden  death,  and  a  lady  who  heard  of  the  case  went  round 
among  her  friends  and  raised  $100  for  the  poor  family. 
She  carried  $65  down  immediately,  that  being  all  she 
had  then  collected,  and  was  overwhelmed  with  thanks 
and  truthful  assurances  of  how  much  the  money  was 
needed,  with  winter  coming  on  and  no  outlook.  When 
the  rest  of  the  money  was  in  hand,  the  lady,  wishing  to 
spare  the  reflections  of  the  poor  widow  on  the  difference 
in  their  positions,  left  her  carriage  at  home,  and  went 
down  in  a  horse-car.  The  house  was  locked ;  and,  as  she 
stood  looking  up  and  down  the  street,  she  saw  a  hack 
approaching  from  the  country.  It  drove  up  to  the  door ; 
and  when  the  woman  got  out  and  paid  the  driver  $5 
she  turned  to  the  lady  with  the  remark  that,  as  there  was 
no  school,  she  thought  she  would  give  the  children  a  hack 
ride.      The  same  ride  could  have  been  taken  in  the  horse- 


Division  One.]  THE    FIRE    OF     l8j 2  57 

cars  for  a  tenth  of  what  was  paid,  and  the  lady  was  very- 
indignant ;  but  really  she  was  more  to  blame  than  the 
woman,  who  suddenly  found  herself  in  possession  of  more 
money  than  perhaps  she  ever  had  at  once  in  all  her  life 
before. 

These  cases  enforce  the  moral,  by  pertinent  example, 
that  there  is  no  royal  road  to  doing  good  by  giving  of 
alms.  Though  in  neither  case  was  the  giving  of  public 
aid  by  paid  visitors,  both  teach  the  same  lesson, —  that  it 
is  not  only  necessary  to  mean  well,  but  also  to  do  wisely. 
It  is  one  of  the  uncomfortable  lessons  that  we  learn  in 
life,  sometimes  too  late  to  be  of  any  help  to  any  one,  that 
ignorance  of  the  law  does  not  excuse  us  in  court  or  in  the 
world,  and  that  in  both  we  are  presumed  to  intend  to  do 
what  is  done,  and  are  rewarded  or  punished  according  to 
the  act,  and  not  according  to  the  intention. 

EFFECT    OF    GREAT    FIRE. 

83.  The  1872  fire,  coming  as  it  did  at  the  beginning 
of  winter,  caused  much  hardship  among  the  poor  who 
were  unhoused  by  it;  but  there  is  no  doubt  that  in  the 
end  they  were  great  gainers,  for  the  reason  that  the  tene- 
ments that  were  occupied  by  them,  after  the  first  emer- 
gency, were  in  all  respects  much  better  than  those 
burned.  Here  the  rules  of  the  Building  Commission 
came  in  with  telling  effect;  and,  while  it  was  not  often 
the  good  fortune  of  the  poor  to  have  for  their  benefit 
combined  the  just  owner  and  the  wise  philanthropist,  as 
in  the  case  of  Mrs.  Alice  N.  Lincoln,  the  joining  of 
many  active  forces  clearly  did  give  them,  in  the  end, 
much  better  houses  than  they  had  lost. 

In  one  respect,  if  in  no  more,  the  change  was  wholly 
beneficial;    namely,   that   it   broke  up,    for  a  time,    that 


58  THE    SETTLEMENT    LAW  [Division One. 

aggregation,  that  solidarity,  which  is  such  an  absolute 
bar  to  improvement.  For  whether  it  be  a  general  attack- 
ing an  enemy,  a  doctor  coping  with  camp  fever  in  a 
besieged  city,  a  health  officer  working  in  a  small-pox 
epidemic,  or  an  alienist  seeking  to  bring  back  his  patients 
to  health  and  sanity,  the  problem  is  always  the  same  in 
its  initial  steps;  namely,  to  separate  the  combination 
into  parts,  so  that  they  shall  not  support  and  re-enforce 
each  other.  When  sunlight  and  air  and  civilization  sur- 
round these  fragments  and  wrecks  of  the  perfect  man, 
attacking  them  from  all  sides  with  their  invisible  potent 
effects,  the  problem  is  already  more  than  half  solved. 

CHANGES    IN    NATIONALITY. 

84.  In  the  cities  and  towns  around  the  ports  of  entry 
of  Massachusetts  the  books  of  the  relieving  officers  would 
show,  on  inspection,  a  great  change  in  the  relative  pro- 
portion of  representatives  of  different  races  aided  in  the 
last  twenty  years,  some  having  appeared  in  the  last  ten 
or  fifteen  years,  in  large  numbers,  who  were  practically 
the  first  comers.  This  is  peculiarly  the  fact  in  the 
Russian  and  Polish  Jew  immigration,  and  now  in  Boston 
one  travels  through  whole  streets  in  which  the  signs  on 
the  stores  and  the  conversations  in  the  doorways  assure 
him  that  he  is  in  a  foreign  land.  In  the  Cove  District, 
where  one  of  the  colonies  may  be  found,  one  may  have 
to  go  three  or  four  houses  away  before  an  interpreter  is 
found ;  and  in  all  the  flights,  from  basement  to  top,  each 
harboring  its  separate  family,  there  will  no  person  be 
found  whose  dress,  speech,  and  manner  will  not  stamp 
him  or  her  at  once  as  a  new-comer.  The  very  large 
families  that  fill  these  rooms  —  with  the  disproportion  of 
small  children,  from  the  American  standpoint  —  will  un- 


Division  One.]  NATIONALITIES    AIDED  59 

doubtedly  make  them  likely  subjects  for  poor  relief  for 
some  years  to  come;  but,  considering  the  vast  numbers 
of  them,  the  per  cent,  of  those  receiving  public  relief  at 
this  time  is  not  large.  It  is  a  curious  fact,  but  not 
difficult  of  explanation,  that  the  Japanese  and  Chinese 
contribute  no  subjects  to  the  pauper  ranks  of  Massachu- 
setts. Here  and  there  one  of  the  latter  race,  dying  sud- 
denly with  suspicion  of  suicide,  may  be  abandoned  by  his 
friends  and  left  for  public  burial ;  but  in  life  these  two 
peoples,  coming  here  from  homes  where  dire  poverty  and 
overcrowding  send  men  out  with  nothing  to  begin  the 
world  with,  fall  on  their  feet,  and  remain  there.  If 
other  immigrants,  like  them,  came  only  in  middle  life, 
with  good  health  and  without  children,  the  same  fact 
might  be  true  of  them  also. 

The  different  sections  of  Boston,  curiously  enough, 
keep  their  colonies  of  different  nationalities  reasonably 
distinct;  and  one  may  hear  a  good  succession  of  Italian 
dialects  on  Prince  Street  in  the  North  End,  and  then  go 
to  Western  Island  Portuguese  by  travelling  only  across 
Hanover  Street  to  Fleet  Street  or  Hanover  Avenue. 


THE    CLAUSES    OF    THE    SETTLEMENT    LAWS    CONSIDERED 
SEPARATELY. 

85.  Only  the  clauses  of  the  law  relating  to  settlement 
and  the  relief  of  poor  persons  are  here  quoted;  and  the 
comments  upon  them  will  be  found  to  relate  principally 
to  the  status  of  persons  aided  in  their  homes,  as  it  is 
only  with  such  cases  that  the  author  is  sufficiently  famil- 
iar to  make  his  suggestions  of  any  value.      But  the  law 


60  THE    SETTLEMENT    LAW  [Division  Two. 

governing  these  cases,  except  in  a  few  details,  is  also  that 
governing  the  indoor  poor;  and  there  have  been  few  de- 
cisions not  applicable  to  both.  As  a  rule,  the  decisions 
made  before  1874  are  not  cited,  as  there  were  few  involv- 
ing new  departures  before  that  date,  except  in  military 
settlement,  in  which  department  litigation  has  been 
steady  and  interesting. 

86.  "Chapter  83,  Section  1.  Legal  settlements  may 
be  acquired  in  any  city  or  town  so  as  to  oblige  such  place 
to  relieve  and  support  the  persons  acquiring  the  same,  in 
case  they  are  poor  and  stand  in  need  of  relief,  in  the 
manner  following,  and  not  otherwise;  namely." 

"in  need  of  relief." 

It  is  under  this  provision,  in  connection  with  section 
14,  chapter  84,  that  the  right  of  a  person  to  receive 
relief  in  the  town  of  settlement  or  any  other  than  that  in 
which  he  is  settled  is  made  clear,  and  the  obligation  of 
the  place  of  settlement  is  asserted;  but  the  right  is  con- 
tingent upon  the  fact  that  the  applicant  is  "poor  and 
stands  in  need  of  relief"  (by  117  Mass.  445,  in  New 
Bcdfoi'd  v.  Hingham,  made  more  specific,  "standing  in 
need  of  immediate  relief  "),  and  it  is  noticeable  that  the 
statute  does  not  leave  anything  to  the  discretion  of  the 
relieving  overseer  of  the  poor,  but,  while  it  makes  the 
duty  of  relief  absolute,  in  a  condition  stated,  it  makes  the 
necessity  for  it  a  matter  of  fact,  and  not  of  discretion  or 
judgment  by  the  almoner.  That  is  to  say,  it  is  always 
open  for  the  town  of  settlement  to  inquire  whether  the 
aid  given  by  the  relieving  town  was  necessary,  whether 
the  case  stood  "in  need  of  immediate  relief"  ;  and,  if  it 
did  not  so  stand,  the  relieving  town  cannot  recover.  New 
Bedford  v.    Hingham,  Wj  Mass.  445.      See  also  Temple- 


Division  Two.]  "in  need  of  relief"  6 1 

ton  v.  Winckendon,  133  Mass.  109.  This  is  one  of  the 
conditions  which  must  be  proven  before  the  necessity- 
arises;  and  where  the  town  of  settlement  is  by  statute 
estopped  from  denying  that  the  settlement  is  there,  by 
failure  to  send  such  written  denial  in  due  time,  it  is  not 
estopped  from  denying  that  there  was  a  necessity  for  aid. 
This  is  one  of  the  conditions  which  must  be  proven;  and 
the  court,  in  the  first  case  cited,  says  that  all  the  condi- 
tions necessary  to  create  the  liability  must  concur  and 
must  be  proven,  or  the  liability  does  not  arise.  When  it 
is  remembered  that  under  former  decisions  a  town  was 
held,  on  account  of  failure  to  deny,  to  pay  the  expenses 
of  a  person  having  no  settlement  in  the  State  ( Westmin- 
ster v.  Bernardston,  8  Mass.  104),  it  will  be  seen  how 
highly  the  courts  have  valued  this  right  to  contest  the 
necessity  for  aid. 

The  giving  of  unnecessary  or  excessive  aid,  whether 
by  carelessness  caused  by  irresponsibility  for  charges 
made  to  another  town,  or  to  "get  even"  for  some  former 
sharp  practice  on  the  part  of  the  notified  town,  has  been 
carefully  provided  against  in  a  clause  to  be  later  consid- 
ered; and  the  courts  have  uniformly  held  towns  strictly 
to  the  statute  requirements  in  all  the  conditions  neces- 
sary to  establish  pecuniary  liability.  In  22  Pickering, 
385,  it  is  said  that  "all  the  conditions  must  concur  be- 
fore the  liability  arises  "  ;  and  the  burden  is  on  the  re- 
lieving town  to  show  that  they  do  concur.  That  the 
family  does  live  in  the  notifying  town  or  is  legally  aided 
by  it  (as  in  some  hospital)  in  another;  that  it  needs  the 
aid ;  that  the  father  and  mother  are  legally  married,  if 
that  question  is  involved;  that  the  last  legal  settlement 
is  in  the  defendant  town ;  that  they  are  the  persons  claim- 
ing the  rights  asserted;  and  that  the  claims  made  are  for 


62  THE     SETTLEMENT     LAW  [Division  Two. 

expenses  legally  contracted, —  all  these  are  subjects  upon 
which  proof  is  required,  of  which  the  burden  is  on  the 
claimant. 

The  decisions  of  the  Supreme  Court  repeat  over  and 
over  the  necessity  of  adhering  closely  to  the  letter  of  the 
statute  in  these  cases,  and  of  excluding  all  considerations 
of  equity.  If  one  pays  in  one  year  double  the  amount 
of  money  which  would  have  been  required  of  him  if  dis- 
tributed over  five  years,  and  pays  no  more  during  the 
residence  of  five  years,  he  will  have  no  settlement,  even 
if  able  to  pay  as  much  all  the  time,  because  he  has  not 
fulfilled  the  arbitrary  requirements  of  the  law. 

RESPONSIBILITY    OF    TOWNS    TO    OWNERS. 

87.  "Shall  relieve"  gets  a  new  explanation  as  to  the 
discretion  allowed  to  overseers  of  the  poor  from  Lamson 
v.  Newburyport,  14  Allen,  30.  In  this  case  Lamson,  who 
owned  a  tenement  in  which  a  poor  person  lived,  sought 
to  make  the  town  liable  for  the  rent  after  legal  notice. 
The  authorities  denied  responsibility,  and  offered  the 
almshouse  as  a  place  where  the  tenant  could  be  cared  for 
if  turned  out.  Here,  the  court  said,  the  responsibility 
of  the  town  ceased,  and  added  that  Lamson,  having  re- 
fused to  avail  himself  of  this  relief,  could  not  make  his 
neglect  the  basis  of  any  further  claim. 

SETTLEMENT    BY    VOTE    OF    TOWN. 

88.  A  fixed  and  definite  line  with  well-established 
bounds  is  what  the  decisions  have  aimed  at  and  enforced ; 
but  there  is  one  recent  apparent  variation  from  that  rule, 
so  salutary  and  so  often  and  plainly  set  forth.  This 
apparent  departure,  so  recent  in  date,  probably  has  reasons 
in  its  favor,  all  of  which  do  not  appear  in  the  report  of 


Division  Two.]  EASTON    V.    WAREHAM  63 

Eastonv.  Wareham,  131  Mass.  10;  but  it  must  have  been 
an  exceptional  case  which  induced  the  court  to  defend 
itself  from  the  charge  of  introducing  a  new  method  by 
which  settlements  can  be  gained.  It  will,  nevertheless, 
be  found,  on  careful  study,  to  come  within  a  rule  as  old 
as  the  constitution  of  the  towns  themselves,  which  rule 
is  that,  subject  only  to  the  State  constitution,  the  towns 
are  sovereign,  and  may  do  as  they  will  with  their  own  in 
their  internal  affairs.  It  matters  not  that  the  decision  is 
hurtful  to  themselves  or  is  founded  on  a  mistake :  it  is 
in  their  power  to  make  it  and  to  bind  themselves  by  it. 

But  at  first  sight  it  would  seem  that,  where  the  oppos- 
ing party  was  able  to  show  not  one  act  by  which  a  settle- 
ment was  gained  or  in  process  of  gaining,  the  previous 
dictum  of  the  court,  that  liall  the  conditions  must  be 
proved  before  the  obligation  could  arise,"  was  hardly 
satisfied.  Easton  could  show  only  this  fact  to  create  a 
presumption  of  settlement,  that  Wareham  had  more  than 
once  voted,  in  open  meeting,  that  the  Frye  family  was 
of  the  "town's  poor"  ;  and  that  fact  caused  the  court  to 
say  that  the  town  was  bound  by  the  vote.  It  will  be 
noticed  that  at  the  time  this  vote  was  passed  the  eighth 
mode  of  gaining  a  settlement  under  chapter  69,  by  ap- 
probation of  the  inhabitants,  was  in  force;  and  there  was 
no  legal  objection  to  the  admission  of  Frye  to  the  privi- 
lege on  the  day  the  vote  relied  upon  was  passed,  if  the 
question  had  been  presented  in  the  town  warrant. 

89.  In  a  case  of  unnecessary  aid  there  is  little  doubt 
that  the  court  will  say  that  such  aid  will  not  prevent  the 
acquisition  of  a  settlement,  though  there  is  no  direct  de- 
cision as  yet  to  that  effect. 


64                                    THE    SETTLEMENT    LAW  [Division  Two. 

MARRIED    WOMEN SETTLEMENT    THROUGH    HUSBAND. 

90.  "Clause  1,  Chapter  83.  A  married  woman  shall 
follow  and  have  the  settlement  of  her  husband,  if  he  has 
any  within  the  State,  otherwise  her  own,  at  the  time  of 
marriage,  if  she  then  had  any,  shall  not  be  lost  or  sus- 
pended by  the  marriage. ' ' 

.STATUS    OF    MARRIED    WOMEN. 

91.  This  provision  is  probably  as  old  as  the  settlement 
law  of  the  State,  and  repeats  the  conditions  of  the  old 
English  settlement  law,  from  which  it  was  nevertheless  a 
departure,  in  the  fact  that  it  provides  that  a  settlement 
once  gained  cannot  be  lost  until  a  new  one  is  gained 
here.  The  English  law  was  based  on  the  familiar  prin- 
ciple of  coverture  following  marriage,  by  which  sacra- 
ment the  rights  of  the  wife  were  merged  in  those  of  the 
husband  or  even  suspended,  in  order  that  she  might  con- 
form to  his  status  under  the  law.  On  this  provision  is 
based  the  famous  doggerel  rhyme  which  deserves  to  be 
handed  down,  if  for  no  other  reason,  because  it  is  the 
solitary  instance  in  which  the  settlement  law  has  found 
expression  in  rhyme  worthy  of  Mr.  Silas  Wegg  and  of 
the  Chancellor  Bacon  :  — 

"  A  woman  having  a  settlement  married  a  man  with  none. 
The  question  was  (he  being  dead)  if  what  she  had  was  gone. 
Quoth  Sir  Charles  Pratt,  '  The  settlement  suspended  did  remain, 
Living  the  husband ;  but,  he  dead,  it  doth  revive  again.'  " 

92.  In  that  word  "suspended"  is  seen  the  careful 
provision  that  coverture  shall  not  work  forfeiture  of 
settlement  rights.  Coverture  still  has  its  place  in  our 
settlement  law,  and  is  likely  to  keep  it  for  some  time 
longer  in  spite  of  the  wider  privileges  given  to  women 


Division  Two.]  VALIDITY    OF    MARRIAGE  65 

by  the  later  laws.  For  instance,  Spencer  v.  Leicester, 
140  Mass.  224,  denies  to  wives  a  settlement  by  three 
years'  occupancy  of  real  estate;  Jane  E.  Guild  v. 
B.  &  A.  R.R.,  in  Superior  Court,  October  1891,  sets 
forth  the  principle  that  a  wife  not  legally  separated  from 
her  husband  cannot  have  a  separate  domicil;  and  Stough- 
ton  v.  Cambridge,   165  Mass.  251,  affirms  the  decision. 

IS  THE  APPLICANT  A  MARRIED  WOMAN  ? 

93.  At  first  glance  the  phrase,  "a  married  woman," 
would  seem  to  be  one  not  requiring  comment  or  explana- 
tion; but  in  practice  there  is  no  detail  of  the  settlement 
law  that  requires  more  investigation  than  this.  If  one 
could  assume  the  apparent  fact  for  the  real  truth,  all 
would  often  be  easy;  but  among  the  people  at  large,  for 
whose  benefit  settlement  investigations  are  necessary,  at 
least  one  in  each  five  will  prove  to  need  some  further 
tracing  than  the  apparent  surface  fact. 

A    CASE    IN    POINT. 

94.  Thus,  to  take  a  case  in  point,  A.  B.  married  C.  D. 
in  Cambridge  in  1863,  he  then  having  a  settlement  there. 
She  suppresses  the  fact,  which  the  record  of  the  1863 
marriage  shows,  that  she  was  married  before;  and  the 
whole  question  turns  on  that.  The  evidence  of  the  sec- 
ond marriage  is  perfect.  There  is  no  doubt  of  identity 
nor  of  the  settlement  of  A.  B.  ;  but,  if  her  husband, 
E.  F. ,  of  whom  she  tells  nothing,  was  not  legally  sepa- 
rated from  her  by  death  or  her  divorce  from  him,  she  can 
have  no  settlement  by  A.  B.  "Of  her  divorce  from 
him,"  because  this  remarriage  was  done  long  before  the 
present  condition  of  divorce  and  remarriage  made  easy 
was  lawful ;  and  she  is  for  the  purposes  of  this  settlement 


66  THE    SETTLEMENT    LAW  [Division  Two. 

under  that  law  which  ordered  that  the  guilty  party  should 
not  remarry  without  permission  of  the  court,  which  she 
never  got. 

RIGHT    TO    REMARRY    BY    PRESUMED    DEATH    OF    FORMER 
HUSBAND    OR    WIFE. 

95.  Where  there  is  a  husband  or  wife  who  is  absent, 
the  right  to  remarry  is  generally  more  easy  to  settle; 
for  the  common  law  has  agreed  upon  a  term  of  years  after 
which,  under  proper  conditions,  a  person  may  legally  re- 
marry. The  facts  in  Hyde  Park  v.  Canton,  130  Mass. 
505,  are  very  instructive;  and  it  is  quite  certain  to  be  a 
leading  case.  A  man  who  had  a  military  settlement  in 
Canton  married  a  woman  who  had  been,  seven  years 
before,  abandoned  by  her  husband  in  Vermont,  where 
they  had  lived  before.  She  came  away  from  her  former 
home  soon  after  he  left  her,  and  she  had  taken  no  pains 
since  to  learn  whether  he  was  living  or  dead.  The  court, 
in  passing  upon  this  statement  of  fact,  decided  that  she 
could  not  take  the  Canton  settlement,  because  there  was 
no  evidence  that  she  had  been  in  a  position  to  know 
whether  the  first  husband  was  still  living  or  not,  and 
nothing  offered  to  show  that  he  might  not  have  returned 
to  the  place  where  he  left  the  wife  in  a  few  months  after 
she  left  the  State,  and  have  been  living  there  ever  since. 
It  directly  affirmed  the  principle  that  the  common  law 
will  justify  one  who  remains  in  the  place  where  the  sep- 
aration took  place,  without  tidings  of  the  absent,  for  the 
space  of  seven  years,  in  acting  on  the  belief  that  the 
absent  person  is  dead,  and  at  the  same  time  laid  down 
the  rule  that  no  such  belief  was  allowable  by  the  absentee 
in  regard  to  the  one  who  remained  in  the  former  abode. 
Under  this  ruling,    logically  carried  out,  neither  could 


Division  Two]  OF    A    SECOND    MARRIAGE  6j 

gain  rights  under  the  common  law,  by  lapse  of  time,  if 
both  came  away  from  the  former  place  of  abode  before 
seven'years. 

OF  MARRIAGES  WHERE  THERE    WAS   A    PREVIOUS  MARRIAGE. 

96.  Among  the  half-educated,  especially  of  the  older 
natives  of  the  State  with  whom  relieving  officers  deal,  it 
is  very  common  to  find  persons  who  have  honestly  taken 
the  law  into  their  own  hands,  and,  upon  ascertained  facts, 
have  acted  in  entire  good  faith,  in  a  manner  full  of  peril, 
but  not  entirely  illegal.  Thus  a  woman  married  in  good 
faith,  and  with  lawful  ceremonies,  finds  four  years  later 
that  the  man  has  a  lawful  wife  still  living.  As  there  is 
no  doubt,  perhaps  by  his  direct  confession,  that  she  is  not 
his  wife,  she  jumps  at  once  to  the  conclusion  that  her 
marriage  with  this  man  is  void,  and  falls  back  upon 
chapter  146  of  Public  Statutes,  section  4,  to  prove  it. 

97.  That  section  provides  that  a  marriage  shall  be 
void  where  either  of  the  parties  is  partner  to  an  undis- 
solved marriage,  but  the  becoming  void  is  wholly  depend- 
ent upon  the  fact  and  the  validity  of  a  former  marriage. 
One  who  assumes  these  upon  hearsay  or  apparent  facts 
renders  himself  liable  to  various  penalties  if  his  action 
is  based  on  error.  If  an  investigation  made  after  his 
remarriage  shows  that  he  had  legal  warrant  for  it,  no 
harm  is  done;  but  it  is  at  his  peril  that  he  neglects  the 
straight  way  pointed  out  and  becomes  his  own  judge  of 
the  facts. 

98.  Upon  the  arising  of  a  doubt  as  to  the  validity  of  a 
previous  marriage,  either  party  to  the  second  marriage 
may  file  in  court  an  inquiry  to  determine  the  fact,  and 
the  decree  issued  at  the  end  of  such  a  hearing  has  all  the 
validity  and  force  of  a  finding  in  a  suit  for  divorce. 


68  THE    SETTLEMENT    LAW  [Division  Two. 

99.  What  is  the  status  of  a  remarried  person  who  has 
not  taken  these  steps  ?  The  law  presumes,  where  a  state 
of  things  has  been  legally  shown  to  exist,  that  such 
existence  continues  indefinitely  until  some  ending  is 
legally  shown.  A  parcel  of  land  once  bought,  a  mar- 
riage once  solemnized,  are  presumed  to  continue  in  the 
relation  proven  until  some  contradictory  fact  is  later 
proven. 

100.  There  is  a  limitation  hinted  at  above  in  this 
doctrine  of  indefinite  continuance,  and  that  is  found  in 
the  arbitrary  assumption  of  a  period  of  time  after  which 
the  life  of  a  man  is  presumed  to  have  ended.  So  much 
trouble  would  follow,  in  the  transaction  of  business,  the 
disappearance  of  a  man,  with  the  assumption  that  he  was 
alive,  that  it  has  been  assumed  that,  when  he  has  not  been 
heard  from  or  seen  by  those  who  live  where  he  lived  for 
the  space  of  seven  years,  the  law  will  authorize  those  in 
relations  with  him  to  assume  that  he  is  dead.  This  pre- 
sumption does  not  undertake  to  destroy  the  effects  of  the 
former  relation,  but  only  to  establish  a  modus  vivendi, 
subject  to  readjustment  if  the  later  theory  proves  incor- 
rect. 

101.  Here  appears  the  peril  of  one  who  has  acted  on 
his  personal  convictions.  Any  one  of  three  or  four  con- 
tingencies may  overthrow  the  theory  on  which  he  has 
acted,  and  leave  him  outside  the  pale  of  the  law.  If  the 
story  of  a  former  marriage  is  untrue,  or  if,  there  being  a 
marriage,  it  was  void  for  any  reason,  he  has  no  defence. 

102.  A  man  born  in  1863  married  an  unsettled  woman 
in  1890;  and  they  thereafter  never  lived  a  year  at  a  time 
in  one  place  before  1899,  when  she  was  supported  in  a 
hospital.  He  never  gained  a  settlement  in  his  own 
right,    but    had    a   derivative    settlement    by  his    father, 


Division  Two]  IS    LATER    MARRIAGE    VALID  69 

which  his  lawful  wife  could  take.  He  married  in  1882 
a  woman  one  year  older  than  he,  and  in  that  record  both 
gave  the  marriage  as  their  first.  There  is  no  evidence 
that  this  marriage  has  been  dissolved  by  death  or  divorce. 
But  he  has  assumed  the  right  to  remarry,  and  bases  his 
action  upon  the  assumed  fact  that  in  1889  a  police  court 
adjudged  him  not  to  be  the  husband  of  a  woman  with 
whom  he  was  until  that  time  living  (who,  he  says,  was 
the  first  wife),  for  the  reason  that  she  then  had  a  living 
husband.  He  was  arraigned  in  the  court  on  a  charge  of 
taking  money  and  goods  from  the  house  where  the  woman, 
not  he,  lived;  and  it  was  not  larceny  if  the  woman  was 
his  wife.  He  claims  that  a  daughter  of  the  woman, 
nearly  adult,  and  of  course  born  long  before  1882,  testi- 
fied to  her  mother's  previous  marriage,  and  that  it  was 
largely  on  her  evidence  that  the  woman  (who,  he  says,  was 
twice  his  age,  and  known  to  every  one  by  a  name  bearing 
no  resemblance  to  the  maiden  name  of  the  woman  of  the 
1882  marriage  or  to  his)  was  found  not  to  be  his  wife. 
There  is  no  evidence  in  the  court  record  and  no  fact  in 
the  memory  of  the  officer  who  had  charge  of  the  case  that 
any  question  of  marriage  was  raised.  So  the  alleged 
finding  of  the  court  has  no  bearing  on  the  case,  and  the 
apparent  status  is  this:  he  did  not  come  within  the 
seven  years'  provision  of  the  common  law,  and  had  no 
right  to  remarry  in  1890. 

103.  It  is  worth  while  to  note,  in  this  case,  the  effect 
of  the  question  of  identity  of  the  woman  in  the  1889  trial. 
If  she  were  proven  to  be  —  what  the  man,  perhaps  for  pur- 
poses of  concealment,  alleges  —  the  person  whom  he  mar- 
ried in  1882,  the  defence  would  be  very  strong;  but  all 
the  ascertained  facts  imply  that  the  1882  wife  had  disap- 
peared before  he  formed  an  association  with  this  woman 
much  older  than  he. 


JO  THE    SETTLEMENT    LAW  [Division  Two. 

104.  So  carefully  do  the  courts  maintain  the  regular- 
ity of  proceedings  in  these  cases  for  the  undoing  of  a 
wrong  that  in  Rawson  v.  Rawson,  156  Mass.  576,  the 
case  turned  on  the  fact  that,  one  party  to  the  irregular 
marriage  being  dead,  the  court  refused  to  hear  the  other 
side,  on  the  same  ground  that  it  would  not  have  con- 
ducted an  ex  parte  divorce  suit  with  only  one  of  the  sides 
represented. 

105.  Even  in  the  case  of  a  marriage  void  by  reason  of 
nonage  and  separation  without  subsequent  cohabitation, 
it  is  quite  probable  that  some  method  of  determining  that 
fact,  as  public  as  the  marriage  ceremony  was,  will  be  re- 
quired, with  the  same  dangers  as  are  set  forth  under  the 
preceding  clause  for  neglect. 

LEGITIMATE    CHILDREN. 

"Clause  2.  Legitimate  children  shall  follow  and  have 
the  settlement  of  their  father,  if  he  has  any  within  the 
State,  until  they  gain  a  settlement  of  their  own;  but,  if  he 
has  none,  they  shall  in  like  manner  follow  and  have  the 
settlement  of  their  mother,  if  she  has  any. " 

There  have  been  no  recent  decisions  casting  light  on 
this  long  existing  provision,  and  it  is  necessary  to  make 
only  two  brief  observations  upon  it.  The  first  is  that  the 
word  "follow"  necessarily  implies  that  the  completed 
changes  which  the  father,  or  mother,  failing  the  father, 
may  make  in  settlement  during  the  minority  of  the  chil- 
dren, will  give  the  children  new  claims,  which  will  set 
aside  the  former  ones;  and,  second,  that,  if  the  child  has 
a  settlement  through  its  father,  it  will  not  change  to  a 
later  gained  or  derived  settlement  of  the  mother.  This 
provision  continually  works  a  division  of  responsibility 
for  aid  given  to  a  widow  or  remarried  woman,  since  she 


Division  Two]  LEGITIMATE    CHILDREN  7 1 

may  gain  by  residence  in  a  different  place  after  the  death 
of  her  husband  or  by  remarriage,  a  claim  which  the 
children,  as  the  legitimate  descendants  of  their  father, 
cannot  take,  if  they  had  one  by  him. 

WHEN    LEGITIMATE    CHILDREN    CHANGE    WITH    THEIR 
MOTHER. 

106.  But,  if  the  children  have  no  claim  by  their  father, 
the  settlement  of  the  mother  derived  from  her  parents, 
if  any,  will  at  once  become  theirs;  and,  if  she  should  re- 
marry during  their  minority  or  gain  a  settlement  by  resi- 
dence, the  children  may  change  as  many  times  as  she 
completes  a  new  settlement  during  the  minority  of  each. 

CASE    CITED. 

107.  To  illustrate,  a  woman  brought  her  eight  minor 
children  with  her  to  Massachusetts  from  the  Provinces, 
their  father  and  his  ancestors  never  having  lived  in  the 
State.  Two  years  after  her  coming,  and  while  the  oldest 
of  her  children  was  only  nineteen,  she  married  a  man 
who  was  settled  in  Massachusetts;  and  immediately  all 
her  children  became  settled,  through  her,  in  the  town  of 
her  husband's  settlement.  Three  years  after  this  mar- 
riage the  husband  died,  and  soon  after  the  woman  moved 
to  another  place.  She  lived  in  that  place  five  years ;  and 
at  the  end  of  that  time  the  responsibility  for  aid,  in  case 
it  was  needed,  became  divided,  those  children  who  had 
attained  their  majority  before  the  five  years  ended  contin- 
uing in  the  settlement  of  the  husband,  and  those  who 
remained  minors  at  the  end  of  the  period  changing  with 
her  to  the  latest  settlement.  But  in  case  of  aid  being 
needed,  if  it  were  for  one  of  these  who  had  gained  by 
the  step-father  only,  the  town  of  his  settlement  would  be 


J  2  THE    SETTLEMENT    LAW  [Division  Two. 

liable,  and  vice  versa  in  case  only  the  younger  ones  were 
aided,  or  the  mother.  One  error  of  construction,  not  so 
rare  as  it  should  be,  may  here  be  noted  and  warned 
against.  The  children  mentioned  above  do  not  take  the 
settlement  of  their  step-father,  technically,  but  of  their 
mother,  who  gets  one  by  her  marriage.  The  distinction 
is  a  very  practical  one,  as  appears :  if,  instead  of  marry- 
ing a  man  with  a  settlement  at  the  time  of  marriage,  she 
had  married  a  foreigner  like  herself,  and  they  had  to- 
gether come  to  the  country  with  her  children,  not  his, 
and  she  had  died  before  the  step-father  completed  his 
settlement,  the  fact  that  the  step-father  thereafter  com- 
pleted a  settlement  would  give  no  rights  to  these  chil- 
dren, because  the  mother  had  no  settlement  at  the  time 
of  her  death.  Or  if  the  settled  husband  whom  she  did 
marry  had  before,  a  settlement  in  some  other  town  than 
that  in  which  he  and  she  lived,  and  she  did  not  live  long 
enough  for  him  to  change  from  the  original  town  to  that 
of  their  residence,  the  fact  that  he  afterward  gained  there 
would  be  immaterial,  and  aid  to  the  children  would  be 
chargeable  to  the  place  of  original  settlement,  if  she 
died  without  the  later  one.  So  constantly  does  Taunton 
v.  Boston  affect  the  construction  of  the  law. 

MINOR    DAUGHTERS    MARRIED    ARE    NO    LONGER    CHILDREN. 

108.  An  important  exception  to  this  rule  of  minor 
children  not  settled  by  the  father  changing  with  the 
mother  is  found  in  13  Mass.  469,  a  case  between  Boston 
and  Charlestown,  which  is  not  a  new  decision,  but  is  one 
that  is  very  certain  to  be  followed  as  long  as  our  pres- 
ent provision  is  on  the  statute  book.  It  affirms  the  very 
broad  principle  that  female  children  are  emancipated  by 
the  fact  of  marriage,  without  regard  to  age,  so  that  they 


Division  Two.]  ILLEGITIMATE    CHILDREN  73 

cannot  take  the  settlement  of  their  mother,  which  was 
incomplete  at  the  time  of  the  marriage,  even  if  it  is  com- 
pleted while  the  daughter  is  still  a  minor. 

MAJORITY    FOR    BOTH    SEXES    BEGINS    AT    THE    AGE    OF 
TWENTY-ONE    YEARS. 

109.  It  is  perhaps  not  unnecessary  to  say  that  the  age 
of  majority  for  females,  as  for  males,  for  the  purposes  of 
the  settlement  law,  is  twenty-one  years,  and  not  eighteen 
years,  as  is  popularly  believed.  Various  measures  of 
freedom  and  responsibility  accrue  to  females  at  the  ages 
of  fourteen  and  eighteen  years;  but  the  privileges  of  per- 
sonal acquisition  of  settlement  begin  for  all  at  the  age 
of  twenty-one  years,  except  under  the  law  of  military 
settlement. 

ILLEGITIMATE     CHILDREN. 

1 10.  "Clause  3.  Illegitimate  children  shall  follow 
and  have  the  settlement  of  their  mother  at  the  time  of 
their  birth,  if  she  then  has  any  within  the  State;  but 
neither  legitimate  nor  illegitimate  children  shall  gain  a 
settlement  by  birth  in  the  place  where  they  were  born,  if 
neither  of  their  parents  then  had  a  settlement  therein." 

The  last  clause  of  this  provision  is  intended  specially 
to  call  attention  to  that  alteration  of  the  statute  in  exist- 
ence before  1794,  which  gave  settlements  to  illegitimate 
children  in  the  town  of  birth  by  the  fact  of  birth  there. 
There  has  been  of  late  years  no  modification  of  the  provi- 
sions of  this  branch  of  the  law;  and  it  is  necessary  only 
to  call  attention  to  the  equitable  addition  which  was  first 
made  in  1853,  by  which  children  born  without  the  bonds 
of  wedlock  are  included  in  the  effects  of  legitimacy  by 
the  subsequent  marriage  and  acknowledgment  of  the  par- 


74  THE    SETTLEMENT    LAW  [Division  Two. 

ents.  The  provision  will  be  found  in  chapter  125, 
Public  Statutes;  and  there  is  nothing  in  its  terms  that 
suggests  any  official  record  or  adjudication  to  determine 
the  fact,  but  only  such  inference  as  can  be  drawn  from 
common  report  and  daily  conduct. 

in.  An  interesting  question, '"  as  yet  not  mooted,  is 
sure  to  arise  sooner  or  later,  if  the  present  statute  con- 
tinues in  force.  It  can  perhaps  be  better  illustrated  by 
example  than  theoretically.  A  woman  bore  an  illegiti- 
mate son  in  1853.  She  was  then  twenty-eight  years  old, 
and  neither  of  her  ancestors  came  to  Massachusetts ;  but 
she  had  lived  six  years  in  the  place  where  her  son  was 
born,  before  his  birth,  —  that  is,  from  the  time  she  was 
twenty-two  till  she  was  twenty-eight.  The  statute  says 
the  child  shall  "follow  and  have,"  etc.  Are  these  terms 
contradictory,  or  must  we  apply  them  as  meaning  different 
but  not  opposite  things?  "Have  at  the  time  of  its 
birth,"  we  can  understand;  "follow"  must  also  mean 
"at  the  time  of  its  birth,"  and  not  something  the  mother 
gets  later  (unless  by  marriage  to  the  father  under  the 
last  statute  quoted),  so  that  we  can  hardly  construe  the 
word  "follow"  to  mean  what  it  does  in  that  of  legiti- 
mate children,  —  the  right  to  take  a  change  by  acts  done 
after  its  birth, —  for  it  is  believed  that  the  courts  have 
never  construed  the  statute  so  as  to  include  such  rights. 
But  in  1895  the  son  falls  into  distress  and  receives  re- 
lief. He  has  done  nothing  to  acquire  anything  in  his 
own  right,  and  his  claim  rests  on  his  mother's.  She 
lived  until  1875,  long  after  the  clause  making  citizenship 
a  requisite  was  repealed  (May  26,  1871)  ;  and,  if  she  in 
her  later  years  had  applied  for  aid,  having  gained  no 
later  claim,  those  very  six  years,  1847-185  3,  proven 
would  have  given  her  a  settlement,  if  investigated,  say 
after  May,  1874. 


Division  Two.]         LEGITIMIZATION    BY    MARRIAGE  75 

112.  Could  she  then  have  a  claim  that  her  son  of  six 
could  not  take?  That  will  depend  upon  the  stress  that 
the  court  lays  upon  the  word  "then." 

113.  Literally,  she  "then  "  had  none,  —  that  is,  at  the 
time  of  his  birth;  but  it  was  given  to  her  by  legislation 
a  year  after  the  son  was  of  age,  and  twenty-two  years 
after  the  apparently  irrevocable  word  had  been  spoken. 
But  in  Worcester  v.  Springfield,  127  Mass.  540,  and  Bos- 
ton v.  Wativick,  132  Mass.  519,  the  court  steadily  con- 
strues the  statutes  so  that  a  retroactive  force  is  given 
them,  which  places  the  rights  of  the  person  affected  by 
them  in  exactly  the  same  light  as  they  would  have  been 
in  if  all  the  present  conditions  had  then  obtained. 

114.  Still,  the  modifying  word  indicated  is  in  this 
statute  alone;  and,  if  the  effect  of  retroaction  should  be 
held  to  include  this  modification,  it  will  be  an  additional 
departure  from  the  obvious  letter  of  the  statute. 

115.  A  most  interesting  case  which  has  been  aided  in 
the  last  year  shows  the  endless  diversity  of  questions 
that  may  arise  as  to  the  construction  of  statutes  appar- 
ently so  clearly  expressed  that  no  difference  of  opinion 
can  exist  as  to  their  meaning  and  intention. 

The  proper  scope  of  this  1853  law  will  appear  to  the 
average  reader  to  be  to  remove  from  innocent  children 
the  effect  of  the  error  of  their  parents,  and  to  allow  the 
latter  an  opportunity  for  amendment.  It  implies  the 
performance  of  a  delayed  duty,  and  infers,  in  its  equi- 
table construction,  that  this  act,  now  allowed,  might  and 
should  have  been  done  years  before.  Does  it  apply  to 
the  following  case?  A.  B.  married  in  England  in  1874 
C.  D. ,  and  lived  with  her  only  one  year,  when  she  left 
him;  and  he  never  has  heard  from  or  of  her  since,  though 
he  remained   in   London,    where  he   lived   before,    until 


j6  THE    SETTLEMENT    LAW  [Division  Two. 

1882,  making  fully  seven  years  after  she  disappeared. 
There  was  never  any  step  taken  for  a  legal  separation  by 
him  or  against  him.  About  1876  he  began  living  with 
E.  F.,  who  bore  him  three  children  in  England  before 

1883,  when  they  came  to  America.  In  1884  a  son  was 
born  in  the  place  in  which  they  have  since  lived,  and  he 
was  aided  in  1899.  The  father  has  never  paid  a  tax,  and 
has  no  settlement.  The  mother  is  forty  years  old,  and 
lived  in  the  place  fifteen  years  without  aid.  They  were 
married  there  in  1895,  when  the  boy  aided  was  eleven 
years  old;  and  the  father  acknowledges  that  he  is  his 
child. 

116.  One  condition  that  prevents  a  tentative  opin- 
ion as  to  whether  this  boy  is  a  State  charge  or  a 
settled  person,  is  the  lack  of  knowledge  of  the  subse- 
quent history  of  the  wife,  C.  D.  The  man  says  that, 
so  far  as  he  knows,  she  may  be  alive  to-day.  If  the 
fact  were  shown  that  she  is  still  alive  and  still  his  wife, 
the  apparent  marriage  is  void,  the  mother  of  the  boy  has 
not  legally  married  the  father;  and,  as  she  had  lived  in 
the  place  only  one  year  of  the  required  five  "at  the  time 
of  his  birth"  and  had  "then  "  no  settlement,  the  boy 
also  has  none,  unless  by  some  other  provision,  having  no 
claim  to  the  five  years  after  his  birth  under  this  statute 
by  reason  of  his  illegitimacy.  But  on  the  present  show- 
ing the  inference  reaches  a  different  result,  which  will 
remain  until  more  light  changes  it. 

According  to  the  terms  of  the  common  law,  [assuming 
that  A.  B.  tells  the  truth,]  he  was  justified  in  believing 
that  C.  D.  was  dead  in  1882;  and  there  was  no  legal 
objection  to  his  marrying  E.  F.  in  1882,  so  far  as  the 
provisions  of  this  1853  law  go,  and  so  legitimatizing 
this  boy  and  qualifying  him  to  take  his  mother's  settle- 


Division  Two.]  LEGITIMIZATION    BY    MARRIAGE  J  J 

ment.  Suppose  an  investigation  to  show  that  C.  D.  died 
in  1894:  the  1895  marriage  was  valid,  in  spite  of  the 
ignorance  of  A.  B.  of  the  fact  of  her  death. 

But  what  would  be  the  fact  if  investigation  should 
show  that  she  did  not  die  until  1897  ?  That  fact  would 
show  that  by  reason  of  the  invalidity  of  the  1895  mar- 
riage the  boy  was  illegitimate  when  the  1899  bill  ac- 
crued; but,  apparently,  a  marriage  solemnized  after  the 
death  of  C.  D.  was  established  would  legitimatize  the 
children,  and  thus  establish  the  principle  that  persons, 
who  could  not  during  the  birth-time  of  their  children 
marry,  may  render  them   legitimate  by  a  later  marriage. 

Furthermore,  without  waiting  for  any  such  facts,  cere- 
monies, or  decrees,  a  reference  to  section  14  of  chapter 
145  will  make  it  certain  that,  if  this  mother  in  good 
faith  married  the  father  of  her  children,  there  is  nothing 
to  prevent  them  from  taking  her  settlement,  though  the 
real  wife  be  still  living. 

Consider  another  but  not  mooted  case,  though  an  ac- 
tual occurrence.  A  married  man,  living  away  from  his 
wife  and  having  a  settlement,  begets  three  illegitimate 
children,  their  mother  having  a  settlement  in  another 
place.  Upon  the  death  of  his  wife,  after  the  birth  of  all 
the  children,  he  marries  their  mother.  He  could  not 
have  married  her  a  year  before  he  did.  Are  these  chil- 
dren legitimatized  by  chapter  145,  section  14?  There 
seems  no  reason  to  doubt  it. 

117.  It  will  not  be  uninstructive  to  briefly  consider  the 
successive  steps  taken  by  the  two  towns  who  represent 
the  two  sides  of  the  English  case.  The  town  which  aids 
is  always  under  obligation  to  prove  "all  the  facts  neces- 
sary "  to  establish  the  claim,  while  the  defendant  denies. 

The  1895  marriage  being  shown,  the  claim   is  estab- 


yS  THE    SETTLEMENT    LAW  [Division  Two. 

lished  under  the  statute  of  1853.  The  defendant  has 
learned  the  facts  related  above,  which  show  the  possible 
invalidity  of  that  marriage;  but  he  cannot  compel  the 
father  to  testify  to  them,  and,  if  he  cannot  establish  the 
fact  of  the  first  marriage  by  other  evidence,  he  will  prob- 
ably be  held  to  pay  upon  the  record  evidence  of  the  mar- 
riage in  1895.  But,  even  if  he  establishes  the  former 
marriage  by  good  evidence,  the  presumption  of  death, 
1876-82,  would  remain,  and  also  during  the  time  from 
1883  to  1895,  while  the  final  clause  of  chapter  145 
would  hold  him,  if  all  other  inferences  failed. 

118.  While  speaking  of  illegitimacy,  it  is  interesting 
to  note,  in  passing,  that  in  Abington  v.  Duxbury,  105 
Mass.  287,  the  court  would  not  allow  a  mother  to  testify 
that  a  child  born  in  wedlock  was  illegitimate. 

SETTLEMENT    BY    OWNING    REAL    ESTATE. 

119.  "Clause  4.  Any  person  of  the  age  of  twenty- 
one  years,  having  an  estate  of  inheritance  or  freehold  in 
any  place  within  the  State  and  living  on  the  same  three 
years  successively,  shall  thereby  gain  a  settlement  in 
such  place."  It  will  be  seen  that  this  is  a  method  of 
gaining  a  settlement  without  taxation,  and  the  latitude 
that  decisions  have  given  it  makes  it  one  of  the  most 
inclusive  methods.  Thus  in  Boylston  v.  Clinton,  1  Gray, 
619,  one  was  held  to  have  gained  by  this  method,  having 
a  warranty  deed,  though  his  grantor  had  no  title. 

120.  A  verbal  bargain,  without  subsequent  deed,  with 
occupancy  for  the  required  time,  was  held  in  Brewster  v. 
Dennis,  21  Pick.  233,  to  give  a  settlement  by  freehold 
(but  only  after  twenty  years'  quiet  possession).  A  bond 
for  a  deed  bearing  permission  to  take  the  rents  and 
profits  gives  a  settlement   in   three  years    {Randolph  v. 


Division  Two.]         SETTLEMENT    BY    REAL    ESTATE  79 

Norton,  16  Gray,  395).  It  is  immaterial  that  the  prop- 
erty is  mortgaged  for  more  than  its  full  value  (Mt. 
Washington  v.    Clarksburg,    19  Pick.    294). 

121.  In  Boston  v.  Wells,  14  Mass.  384,  it  was  held 
that  the  three  years  of  ownership  must  be  also  the  three 
years  of  residence;  and  in  the  late  case  of  Greenfield  v. 
Buckland,  159  Mass.  491,  where  one  owned  a  freehold 
more  than  three  years  and  lived  on  it  till  he  went  out 
of  the  State  to  work,  with  declared  purpose  to  return 
when  he  had  earned  a  specified  sum  of  money,  it  was 
held  that  he  did  not  "live  on  the  same"  within  the 
meaning  of  the  statute. 

122.  It  is  probable  in  this  case  that  there  was  some 
fact  not  mentioned  in  the  report  that  made  the  purpose  to 
return  more  indefinite  than  the  opinion  of  the  court  im- 
plies; for  the  animus  revertandi  was  surely  as  clear  as 
in  many  cases  where  enlistments  in  the  army,  long 
whaling  voyages,  and  indefinite  absences  in  Europe  have 
repeatedly  been  held  not  to  interrupt  the  domicil. 

123.  Of  the  purpose  to  return  there  was  no  doubt:  it 
was  only  the  time  when,  dependent  upon  his  earnings,  that 
could  not  be  stated.  It  is  within  the  knowledge  of  many 
persons  that  houses  standing  unoccupied  are  considered 
so  much  worse  insurance  risks  that  many  companies  make 
their  policies  to  be  void  after  a  given  time  of  unnotified 
vacancy,  so  that  an  owner  necessarily  absent  might 
choose  to  have  a  tenant  at  will  in  occupancy  rather  than 
to  allow  his  house  to  stand  vacant.  If  this  house  were  so 
occupied,  with  no  bargain  for  continual  occupancy,  it  is 
not  easy  to  see  why  the  case  would  not  fall  within  the 
rule  of  Chicopee  v.  Whately,  6  Allen,  508,  in  which  the 
court  says  that  a  domicil  once  acquired  is  presumed  to 
continue  until  a  subsequent  change  is  shown. 


SO  THE    SETTLEMENT    LAW 


[Division  Two. 


Still,  the  cases  that  arise  often  present  such  contradic- 
tory phases  that  it  is  almost  impossible  to  found  a  satis- 
factory conclusion  upon  them ;  and,  if  the  court  cannot 
dismiss  that  in  litigation  with  Mercutio's  malediction, 
it  must  often  wish  that,  in  place  of  the  absolute  finding, 
—  "You  have  no  responsibility,  go  in  peace,  for  the  bur- 
den is  all  on  your  adversary,"  —  it  were  possible  to 
assess  the  contending  towns  each  for  its  equitable  share. 

Thus  there  is  now  a  family  so  poor  and  lazy  that  the 
freehold  in  its  possession  is  nearly  consumed  by  the 
accrued  interest  on  the  mortgage.  Before  many  months 
the  mortgagee  will  take  possession,  and  the  place  will  be 
sold.  It  happens  to  stand  on  the  boundary  line  between 
two  cities;  and  the  authorities  of  each,  foreseeing  the 
inevitable,  have  always  neglected  to  tax,  not  because 
taxation  is  a  necessary  part  of  such  a  settlement,  but 
because  each  was  willing  that  the  other  should  assume 
that  the  lot  as  well  as  the  house  was  wholly  within  the 
bounds  of  the  other  place.  So  the  estate  has  not  ap- 
peared in  the  valuation  list  of  either,  though  the  war- 
ranty deed,  with  the  name  of  the  grantee  as  of  one  of 
the  two  places,  will  always  be  record  evidence  of  owner- 
ship. 

THE    FINDING    IS    TECHNICAL,     NOT    EQUITABLE. 

124.  When  the  question  arises,  the  court  must  decide 
that  the  case  belongs  wholly  to  one  city,  and  not  to  the 
other,  because  no  matter  how  evenly  balanced  the  evi- 
dence may  be,  and  however  nearly  justice  would  be  satis- 
fied by  a  decree  that  each  place  should  be  charged  a 
moiety  of  the  expense,  the  law,  in  the  absence  of  special 
agreement  following  the  division  of  towns,  knows  nothing 
of  equitable  assessment  of  charge,  but  puts  the  burden 
wholly  upon  one.      And,   the  more   evenly  the  relative 


Division  Two.]  COURT    DECISIONS    TECHNICAL  8 1 

considerations    balance  each   other,    the    more   technical 
must  be  the  rulings  upon  which  the  decision  is  made. 

125.  The  wildest  range  of  imagination  cannot  reach 
that  flight  in  which  the  Supreme  Court  of  Massachusetts 
can  be  conceived  as  saying  that  the  facts  are  so  evenly- 
balanced  upon  the  two  sides  that  a  decree  is  impossible, 
and  perhaps  a  decision  is  at  last  reached  based  on  reason- 
ing as  highly  technical  as  some  that  were  delivered  in 
London  in  the  last  century.  There  the  same  rule  of 
local  obligation,  made  a  thousand  times  more  difficult  in 
its  administration  by  the  fact  that  the  lines  separating 
the  parishes,  which  were  the  units  of  settlement,  ran 
through  crowded  districts,  reduced  the  questions  to  be 
settled  to  such  considerations  as  whether  the  family  oc- 
cupied rooms  on  one  side  or  the  other  of  the  separating 
line,  whether  the  habitual  living  rooms  were  in  one  par- 
ish and  the  spare  rooms  in  another,  and  whether  the  head 
of  the  family  by  whom  the  rights  came  lived  more  on  one 
or  the  other  side  of  the  dividing  line.  Upon  these  ques- 
tions of  illegal  taxation  for  the  bearing  of  the  burdens  of 
others  the  battle  was  as  fiercely  and  as  conscientiously 
fought  as  was  that  which  their  cousins  across  the  sea 
waged  for  seven  years  to  avoid  an  unjust  assessment  of 
a  nominal  tax  on  their  cup  of  tea. 

126.  After  the  opinion  of  the  court  was  reached  in  the 
cases  in  question,  both  litigants  must  have  retired  from 
the  court-room  with  a  renewed  sense  of  the  resources  of 
the  law  in  the  hands  of  a  master;  and  the  sadness  with 
which  one  heard  the  conclusion  announced  must  have 
been  greatly  tempered  by  a  sense  of  the  acumen  that 
was  its  chief  recommendation. 

It  will  be  a  surprise  to  many  of  the  descendants  of 
these  people,  to  whom  litigation  is  almost  as  much  a  ne- 


82  THE    SETTLEMENT    LAW  [Division  Two. 

cessity  as  breathing,  to  know  that  now  throughout  the 
United  Kingdom  pauper  lawsuits  between  towns  are 
unknown.  The.  Commission  of  Charity,  of  whom  Mr. 
W.  E.  Henley,  lately  in  this  State,  is  a  member,  sits  to 
hear  all  questions  arising,  and  decides  them  without 
appeal  once  for  all.  This  substitution  of  the  uniform 
skilled  knowledge  of  an  expert  for  the  haphazard  judg- 
ment of  a  jury,  who  often  hear  the  question  raised  for  the 
first  time  when  called  to  decide .  it,  is  all  in  the  right 
direction;  and,  if  it  were  not  for  the  fact  that  here  mem- 
bership in  the  Relief  Association  is  rapidly  bringing 
about,  in  a  voluntary  manner,  the  same  result,  it  would 
be  a  question  whether  such  a  change  might  not  be  bene- 
ficially introduced  here. 

SETTLEMENT    BY    POLL    TAXES. 

127.  "Clause  5.  Any  person  of  the  age  of  twenty- 
one  years  who  resides  in  any  place  within  this  State  for 
five  years  together,  and  pays  all  State,  county,  city  or 
town  taxes  duly  assessed  on  his  poll  or  estate,  for  any 
three  years  within  that  time,  shall  thereby  gain  a  settle- 
ment in  such  place. ' ' 

128.  "Of  the  age  of  twenty-one  years  "  shows  that  the 
commencement  of  gaining  is  from  the  twenty-first  birth- 
day, for  both  the  residence  and  taxation  required.  That 
is  to  say,  neither  the  tax  assessed  in  the  twentieth  year 
nor  a  fractional  portion  of  residence  in  the  same  can 
count;  but  there  must  be  three  taxes  assessed  and  paid 
after  the  person  is  twenty-one  years  old,  and  five  full 
years'  residence  from  the  same  date. 


Division  Two]    SETTLEMENT  INTERRUPTED  BY  AID  83 

EXCEPTION    BY    REMOVAL    OR    AID. 

129.  With  one  exception  there  would  seem  to  be  no 
question  that  any  three  of  the  prescribed  taxes  paid  in  the 
five  years'  residence  would  give  the  settlement ;  but  that 
exception  is  important,  though  turning  on  a  principle 
already  indicated, —  namely,  the  completion  of  the  full 
term  of  residence  in  the  same  period  in  which  the  taxes 
are  paid.  Apparently,  the  question  can  arise  only  when 
the  third  tax  is  paid  in  the  last  year  of  residence.  Then 
the  question  will  come,  "Was  the  last  year  of  residence, 
for  purposes  of  settlement,  until  May  1  of  the  following 
year  continuous,  or  was  it  interrupted  by  absence  or  aid 
or  death?"  If  one  came  to  a  town  November  1890, 
paid  a  tax  1891,  1893  and  1895  only,  and  in  December 
1895,  or  before  May  1896,  was  removed  to  an  insane 
asylum,  he  would  have  lived  in  the  place  five  years,  and 
would  have  paid  all  taxes  assessed  in  three  of  those  years; 
and  yet,  following  the  decision  in  Taunton  v.  Ware  ham, 
before  mentioned,  153  Mass.  192,  he  would  have  gained 
no  settlement,  because  the  municipal  year  in  which  the 
third  tax  was  paid  was  not  complete  before  removal. 

If  he  had  come  in  November  1890,  had  paid  1891-92 
and  1894,  he  might  have  removed  in  December  1895,  or 
have  been  taken  to  an  asylum  ;  and  the  five  years  and 
three  taxes  would  have  given  him  a  settlement  in  the 
place,  as  it  was  only  the  fact  that  the  third  tax  fell  on  the 
same  year  that  he  was  unable  to  complete,  that  prevented 
the  letter  of  the  law  from  taking  effect  in  his  case. 

130.  In  the  case  cited  it  will  be  noticed  that  the  re- 
moval was  compulsory,  and  there  was  no  evidence  that 
the  man  ever  had  any  purpose  to  change  his  domicil.  In 
a  case  similar  to  this,  where  a  man  had  lived  three  years 
in  a  place  and  was  removed  thence  to  an  asylum  where  he 


84  THE     SETTLEMENT    LAW  [Division  Two. 

remained  nearly  a  year  as  a  private  charge  and  then 
returned  to  the  place  whence  he  came,  where  he  after- 
ward lived  long  enough  before  applying  for  aid  to  make 
the  whole  time  five  years  if  the  time  in  the  asylum  were 
included,  it  was  held  by  the  authorities  of  the  place  that 
the  residence  was  continuous  for  the  purpose  of  settle- 
ment, as  it  very  certainly  would  have  been  for  voting 
purposes.  The  question  of  domicil  for  voting  purposes 
and  those  of  settlement  is  so  nearly  identical  that  the 
same  considerations  of  act  and  intention  arise;  and  it  is 
hard,  except  on  very  technical  grounds,  to  see  why  a  man 
who  could  have  voted  (all  other  conditions  concurring)  on 
the  day  of  his  discharge  from  the  hospital  should  not 
have  been  considered,  during  his  involuntary  absence,  as 
still  having  a  domicil  in  the  place  from  which  he  was 
taken. 

DOMICIL    CONTINUES    TILL    NEW    ONE    GAINED. 

131.  In  Worcester  v.  Wilbraham,  13  Gray,  586,  it  is 
said  that  absence  without  a  definite  purpose  to  return  will 
not  interrupt  the  residence  required  until  a  new  domicil 
is  acquired  elsewhere.  Applying  that  rule,  which  has 
not  been  set  aside  in  terms,  to  the  first  of  the  above  cited 
cases,  it  will  appear  either  that  there  is  something  in  the 
status  of  an  insane  person  which  vacates  his  power  of 
choosing  a  domicil  or  that  the  later  ruling  is  not  in  har- 
mony with  the  earlier. 

132.  Nor  can  the  very  recent  decision,  Greenfield  v. 
Bnckland,  159  Mass.  491,  be  harmonized  with  it  at  all 
points;  for  that  lays  down  the  rule  that  domicil  follows 
in  a  general  way  the  fact  of  taxation,  and  implies  that 
absence  at  the  time  of  taxing,  however  temporary  in  its 
intention,  may  be  considered  as  evidence  of  intention  of 
change.      From  the  report  of  that  case,  it  would  be  fair 


Division  Two.]  DOMICIL  85 

to  infer  that  the  court  decided  that  the  fact  that  a  person 
was  even  for  a  concededly  limited  time  beyond  the  reach 
of  assessment  would  interrupt  his  continuous  residence 
under  both  the  real  estate  and  five-years  clauses.  The 
earlier  case,  Paris  v.  Hiram,  12  Mass.  262,  in  which 
the  settlement  was  under  the  election  to  office  for  one- 
year  clause,  while  it  makes  it  clear  that  involuntary 
removal  interrupts  the  residence,  bases  the  decision  upon 
incapacity  to  perform  the  duties  of  constable  by  reason  of 
absence,  and  not  on  the  fact  of  absence  alone.  Now,  if 
we  paraphrase  the  language  in  Worcester  v.  Wilbraham, 
13  Gray,  586,  and  say  that  one  having  a  fixed  home,  where 
he  is  in  process  of  gaining  a  settlement,  is  to  be  consid- 
ered as  keeping  that  domicil  until  his  acts  show  that  he 
has  taken  another,  we  shall  see  how  difficult  it  is  to 
reconcile  that  broad  statement,  re-enforced  as  it  is  in 
another  place  by  the  dictum  that  "it  would  be  more 
correct  to  say  that  a  domicil  once  established  is  to  be 
presumed  to  continue  until  removal  with  a  definite  pur- 
pose not  to  return,"  with  the  conclusion  that  a  short  tem- 
porary absence  will  under  some  conditions  effect  that 
result. 

"intention"   in  removal. 

133.  It  would  be  difficult,  in  one  or  two  sentences,  to 
satisfactorily  define  the  term  "intention  to  change."  It 
is  rare  indeed  among  the  poor,  that  such  positive  con- 
ditions concur  as  to  make  a  given  change  positive  in  its 
intention.  "If  things  had  gone  as  we  expected,"  "if  he 
had  got  work  as  he  hoped  to,"  these  are  the  half-formed 
conditional  intentions  from  which  we  are  required  to 
infer  a  definite  fact. 

134.  But  there  are  circumstances  even  more  perplexing 
than  these  in  the  experience  of  the  visitor,  and  it  is  re- 


86  THE    SETTLEMENT    LAW  [Division  Two. 

markable  how  little  previous  legislation  and  litigation 
will  assist  even  the  most  careful  student  in  his  investiga- 
tion. 

CASE    CITED. 

135.  Thus,  a  brakeman  employed  on  a  night  train 
learns  that  by  leaving  B.  and  moving  to  W.  he  can  have 
a  day  train.  He  goes  at  once,  meaning  to  move  his  fam- 
ily as  soon  as  he  can  find  a  house  in  W.  He  has  no 
doubt  that  he  considered  his  home  to  be  in  W.  from  the 
time  he  left  B.  Being  employed  each  day  till  late  in  the 
evening,  he  had  only  a  few  minutes  each  day  in  which  to 
look  for  a  house;  and  thus  his  family  remained  in  B.  two 
months  after  he  left,  he  never  going  back  there  meantime 
even  for  one  night.  At  the  end  of  five  years,  he  having 
lived  in  W.  all  the  time  and  paid  a  tax  each  year,  his 
family  falls  into  distress,  and  the  question  of  settlement 
is  raised.  It  is  found  that,  if  the  five  years  is  calculated 
from  the  time  he  went  alone,  he  has  been  five  years  and 
a  month  in  W.  ;  but  if  from  the  date  when  the  wife  and 
children  went,  the  time  is  only  four  years  and  eleven 
months.  Bearing  in  mind  that  the  courts  have  always 
held  that  the  domicil  of  the  wife  is  controlled  by  that  of 
the  husband,  and  remembering  that  the  man  had  formed 
and  forthwith  executed  a  purpose  to  leave  B.  and  not  to 
return,  we  may  risk  a  guess  that  in  case  of  a  suit  the 
court  would  say  that  a  settlement  had  been  gained  in  W. 
136.  Under  the  question  of  domicil,  mention  must  be 
made  of  Warehamv.  Milford,  105  Mass.  293,  where  a  man 
was  held  to  have  gained  a  settlement  by  living  under  an 
assumed  name  in  a  town  away  from  his  family  and  pay- 
ing taxes  there,  although  the  town  where  the  wife  re- 
mained had,  unknown  to  him,  aided  her  during  the  same 
time,  which  decision,   besides  the   question   of  domicil, 


Division  Two]  DOMICIL    IN    SETTLEMENT  8  J 

seems  also  to  settle  the  question  that  a  man  must  know 
of  public  aid  in  order  to  be  pauperized  by  its  reception. 

137.  Again;  a  woman  who  has  a  settlement  by  her 
husband  in  B.  becomes  a  widow  in  1892,  her  husband 
dying  in  February.  On  April  29  of  that  year  she 
meets,  by  agreement,  in  P.  the  owner  of  a  farm  which 
she  means  to  buy.  She  bargains  for  it  on  that  day, 
pays  for  it,  and  receives  a  deed  as  of  May  I  1892, 
and  on  that  day  sends  up  her  hired  laborer,  who  there- 
after lives  and  works  upon  the  place  with  the  stock  that 
she  bought  and  sent  up  with  him.  She  does  not  spend  a 
day  or  a  night  on  the  farm,  the  house  being  vacant  and 
unfurnished ;  but  she  makes  oath  that  from  and  after  May 
1  she  considered  the  P.  farm  her  home  and  place  of  resi- 
dence. She  comes  back  to  B. ,  and  makes  all  possible 
haste  in  arranging  her  affairs;  but  it  is  not  until  July 
1892,  that  she  is  able  finally  to  go  to  P.  to  live,  and  she 
was  not  there  at  all  between  May  and  July,  being  busy  in 
settling  up  her  extensive  business  relations  in  B.  She 
loses  possession  and  occupancy  of  the  farm  May  4  1895. 
Does  her  case  come  within  the  terms  of  the  statute 
giving  settlement  by  three  years'  ownership  and  occu- 
pancy ?  Can  her  oath  that  she  considered  her  home  to  be 
on  the  farm  after  April  30  1892,  be  so  construed  as  to 
make  her  residence  constructively  there  and  her  stay  in 
B.  to  imply  no  domicil? 

138.  In  Brookfieldv.  Warren,  128  Mass.  287,  the  court 
ruled  that  the  intention  expressed  must  concur  in  point 
of  time  with  the  act  done,  that  the  fact  that  a  man  had 
expressed  an  intention  to  go  to  W.  to  live  at  one  time, 
when  he  did  not  go,  raised  no  presumption,  and  refused 
to  consider  (as  the  person  whose  acts  were  in  question 
was  dead   when   the  trial   occurred)    parole   evidence   of 


88  THE     SETTLEMENT    LAW  [Division  Two. 

intention  to  move  several  months  before  the  removal   in 
question  occurred. 

139.  Another  case  is  that  of  a  man  living  in  E.  who 
suddenly  had  to  find  another  tenement  on  account  of  the 
loss  of  his  own  by  fire.  His  business  made  it  necessary 
for  him  to  live  near  his  former  home;  and  he  took  a  house 
on  the  other  side  of  the  street  while  his  old  home  was 
undergoing  repair,  never  changing  his  purpose  to  occupy 
that  again  as  soon  as  it  was  ready.  It  was  late  in  the 
fall  when  he  was  burned  out,  and  it  was  not  until  the 
20th  of  May  in  the  year  after  that  he  got  back  into  his 
home.  The  street  in  which  he  lived  makes  the  boundary 
between  E.  and  M.  and  when  he  moved,  he  went  to  the 
latter  place.  As  he  was  there  May  1,  he  was  legally 
taxable  there,  and  apparently  comes  within  the  rule  of 
change  by  absence  in  time  of  taxation  implied  in  Green- 
field v.  Buckland,  159  Mass.  491  ;  but  there  can  be  no 
clearer  case  of  temporary  absence  with  continued  purpose 
to  return  than  this,  and  the  construction  that  would  pro- 
duce a  different  result  should  argue  an  interruption  of 
domicil  in  case  of  a  spring  and  summer  tour  in  Europe  or 
the  South.  It  may  be  expedient  to  adopt  a  definite, 
easily  proven  act  as  a  new  rule  of  domicil;  but  in  the 
light  of  the  principle  much  older  than  the  century,  that 
the  purpose  to  return  when  followed  by  the  act  must  con- 
trol, it  would  appear  that  the  test  proposed  is  opposed  to 
all  earlier  decisions. 

WHAT    PAYMENT    WILL    GIVE    A    SETTLEMENT  ? 

140.  "Pays  all,"  on  poll  or  estate.  The  "or"  at  the 
end  separates  the  taxes  into  different  classes,  and  gives 
the  benefit  to  him  who  pays  the  whole  in  any  year  of  any 
one  of  the  classes  of  taxes  named  for  three  years.     The 


Division  Two.]  SETTLEMENT    BY    TAX  89 

language  is  concise  and  as  definite  as  so  short  a  sentence 
can  be  made,  and  the  wording  of  the  earlier  statutes  is 
the  same  so  far  as  the  enumeration  and  terms  of  payment 
are  concerned.  If  a  man  were  taxed  for  poll  and  real  for 
one  year,  and  paid  the  poll  only,  the  next  year  were  taxed 
poll  and  personal  only,  and  paid  the  personal,  the  poll 
being  abated,  and  the  third  year  were  taxed  poll  and  real 
again,  and  only  the  tax  on  real  was  paid,  the  disjunctive 
"or"  would  appear  to  give  a  settlement  under  this 
method ;  but  this  exact  question  does  not  seem  to  have 
been  raised. 

AMOUNT    OF    TAX    PAID. 

141.  Nor,  apparently,  would  that  qualification  of  the 
amount  of  the  personal  estate  that  was  a  vital  condition, 
fifth  clause,  chapter  69,  omitted  after  1874,  be  essential 
here;  for  in  the  absence  of  value  named  it  is  as  truly 
an  assessment  of  estate  when  the  valuation  is  $50  as 
when  it  is  $200.  A  question  as  to  the  possible  con- 
struction of  this  statute,  under  the  statute  that  allowed 
the  privilege  of  voting  to  the  payer  of  a  county  tax  only, 
was  raised  as  to  whether  the  payment  of  this  half  of  a 
poll  tax  did  not  cover  the  requirement  of  paying  "all 
legally  assessed. " 

142.  To  make  this  construction  seem  reasonable,  a 
decision  made  early  in  the  century  was  cited,  which  ruled 
that  abatement  was  conclusive  evidence  of  illegal  assess- 
ment, and  that  only  that  part  of  the  tax  upon  which  pay- 
ment was  claimed  and  made  was  to  be  considered  as 
"duly  assessed."  But  it  was  seen  that,  in  order  to  sus- 
tain this  contention,  it  would  have  to  be  shown  how  it  was 
possible  to  legally  assess  a  man  for  one-half  of  the  poll 
tax  and  illegally  for  the  other  half  on  May  1  in  the  same 
year;   and  the  view  was  never  held  strongly  enough  by 


90  THE    SETTLEMENT    LAW  [Division  Two. 

any  person  to  give  him  courage  to  maintain  it  in  court. 
While  the  statute  directs  that  the  payment  must  be  made 
for  certain  indicated  years  in  a  given  time,  it  nowhere 
names  a  period  within  which  such  payment  shall  be  made ; 
and  that  fact,  which  is  equally  true  of  all  the  statutes  of 
settlement,  former  as  well  as  present,  has  given  rise  to 
not  a  little  sharp  practice  of  a  kind  now  to  be  mentioned, 
in  the  cities  and  towns,  but  that  will  be  at  an  end  in 
1903,  when  the  amendment,  passed  1898,  takes  full  effect. 

143.  Some  years  ago  a  woman  living  in  a  place  in 
Eastern  Massachusetts  with  her  husband  for  twenty  years, 
was  obliged,  by  his  breaking  down  into  violent  insanity, 
to  take  steps  for  his  committal  to  an  asylum.  The  au- 
thorities of  the  place  of  her  residence  went  over  the  case, 
and  told  her  that  they  would  commit  him;  but,  as  he  had 
paid  only  four  of  the  five  required  taxes,  the  place  of  his 
settlement  would  have  to  be  notified.  She  could  not 
consent  to  that,  and  said  she  must  try  to  get  along  with 
him  at  home.  At  the  end  of  a  fortnight  she  came  again, 
and  said  that  he  must  be  taken,  come  what  would.  He 
was  committed  in  the  usual  form;  and,  when  the  notice 
was  sent  and  the  town  authorities  replied  promptly 
enough  that  they  doubted  the  correctness  of  the  statement 
about  the  taxes,  and  suggested  a  re-examination,  that 
process  showed  that  in  the  time  between  the  application 
and  the  removal  a  tax  of  two  dollars,  assessed  four  or  five 
years  before,  had  been  paid,  and  thus  an  annual  charge  of 
$200  for  many  years  to  come  had  been  transferred  by  the 
payment  of  a  single  poll  tax. 

144.  Nor  have  the  sons  of  these  thrifty  villagers  lost 
the  skill  in  avoiding  or  in  transferring  burdens  which 
their  fathers  thus  showed.  Under  the  provisions  of  the 
State  aid  laws,  when  so  much  depends  upon  the  payment 


Division  Two.]  AID    DEFEATING    SETTLEMENT  9 1 

or  non-payment  of  taxes  since  the  war,  there  is  a  contin- 
ual effort,  by  the  paying  of  back  taxes,  nominally  by  the 
soldiers,  often  really  by  the  authorities  of  the  towns 
(under  the  convenient  alias  of  "expenses  in  .  .  .  case"), 
to  transfer  permanent  claims  by  a  prudent,  sharp,  or 
fraudulent  payment. 

A  question  that  has  not  yet  arisen  is  that  of  the  effect 
of  a  payment  of  such  back  taxes  after  aid  has  been  given. 
Thus,  e.g. ,  a  man  living  in  a  town  since  1891  has  a 
military  settlement  elsewhere.  He  has  paid  1892  and 
1S93  taxes,  and  no  more.  He  is  assessed  in  1894  and 
1895,  and  the  payment  of  either  will  give  him  the 
required  three  in  five.  If,  after  aid  in  1896,  the  town  of 
his  military  settlement,  having  paid  that  bill  and  wishing 
to  avoid  future  charges,  comes  in  and  pays  1894,  will  the 
court  give  him  a  settlement,  it  not  appearing  that  the 
man  himself  did  not  furnish  the  money?  There  is  noth- 
ing in  the  statute  in  chapter  83  — which,  before  the  1898 
amendment,  names  no  time  of  payment  —  opposed  to  the 
view  that  this  might  be  so  decided;  and  there  seems  to  be 
no  way  to  prevent  such  abuse,  only  to  abate  as  soon  as 
it  may  legally  be  done.* 

*  Since  the  first  pages  of  this  work  went  to  the  printer,  a  question  of  the  construction  of 
this  amendment  has  arisen,  on  the  following  facts :  A  man  lived  in  the  city  of  L.  from 
1892  to  May  1897,  five  years,  and  paid  a  poll  tax  in  1S95  for  1894  and  1S95,  having  paid  none 
before.  May  1897  he  moved  to  M.  and  lived  there  till  the  fall  of  1899,  when  he  was  aided. 
L.  was  notified  and  denied,  on  the  ground  that  he  was  a  State  charge,  the  wife  having  no 
five  years.  Upon  receipt  of  the  denial,  the  man,  without  prompting,  went  to  L.  and  on 
legal  advice,  paid  the  1896  poll  and  claimed  settlement.  It  is  the  opinion  of  an  expert 
official  who  does  not  make  many  mistakes  in  settlement  law,  that  the  statute  of  1898  applies 
in  this  case,  and  that  as  the  man  did  not  pay  three  taxes  within  the  five  years  of  assessment, 
he  is  now  a  State  charge.  This  view  assumes  that  the  amendment  is  retroactive,  which  it 
has  not  been  considered  to  be,  but  only  applicable  to  cases  after  July  1898. 

But  even  if  the  payment  of  the  tax  of  1896  can  be  construed  to  give  a  settlement  for 
charges  arising  after  November  1899,  with  refunding  of  aid,  there  is  no  doubt  that  it  cannot 
have  that  effect  before  it  was  made.  The  status  of  the  man  at  that  time  determines  that 
question,  and  subsequent  action  cannot  affect  it.  A  man  passes  from  an  unsettled  condition 
to  a  settled,  exactly  as  from  one  settlement  to  another,  each  condition  having  its  own  conse- 
quences. 

Just  as  the  town  of  the  settlement  of  a  young  woman  would  be  held  to  pay  her  bills  con- 


92  THE  SETTLEMENT  LAW       [Di 

ABATEMENT  TO  PREVENT  SETTLEMENT. 

145.  The  late  case  of  Gordon  v.  Sanderson,  165  Mass. 
375,  seems  to  reaffirm  the  right  of  towns  to  practically 
refuse  the  privileges  of  citizenship  to  whom  they  choose 
not  to  concede  them;  and  the  earlier  case,  10  Met.  115, 
cited  by  Mr.  Hale,  assumes  the  ground  that,  where  the 
non-assessment  was  avowedly  for  the  prevention  of  the 
acquisition  of  a  settlement,  the  court  will  sustain  it. 

PROVISIONS    OF    1874    AMENDMENTS. 

146.  Perhaps  the  consideration  of  this  clause  furnishes 
as  good  a  time  as  any  for  some  remarks  upon  the  1874 
law  and  the  legal  effect  of  changes  from  the  enactments 
superseded  by  it.  It  will  be  plain  to  all  that  these 
changes  were  the  logical  results  of  the  military  settle- 
ment law;  and,  unless  we  carefully  consider  the  order  of 
their  enactment,  which  order  is  constantly  observed  in  the 
appendix,  and  the  nature  of  the  changes  that  they  pro- 
vided for,  we  shall  not  arrive  at  any  permanent  knowledge 
of  their  provisions  or  of  their  true  scope,  as  some  ex- 
planatory phrases  were  omitted  in  the  1878  codification. 

147.  As  was  said  above,  the  military  law  abolished 
citizenship  and  long  residence  as  requisites  to  settlement, 
so  that  the  way  was  made  ready  in  1868  for  a  provision 
that  persons  having  the  other  qualifications  mentioned  in 
the  statute  should  not  thereafter  be  prevented  from  gain- 
ing settlement  by  lack  of  citizenship.  The  first  case  that 
arose    under   the  act  —  Commonwealth   v.    Sudbury,    106 

traded  the  day  before  marriage,  and  the  town  of  the  husband's  settlement  those  of  the  day 
after;  in  this  case  if  the  man  had  no  settlement  when  the  expense  accrued  the  city  cannot  be 
held.  As  to  the  effect  of  returning  two  years  after,  from  another  town,  and  paying  a  tax 
there  seems  to  be  nothing  illegal  in  that,  if  the  taxes  remain  open  for  payment,  and  as  the 
effect  of  such  a  payment  of  tax  after  aid  never  seems  to  have  been  passed  upon  by  the  court, 
an  opinion  on  the  legal  effect  of  the  act  is  much  to  be  wished. 


Division  Two.]  EXPLANATION    OF     1 874    LAW  93 

Mass.  268  —  brought  the  decision  that  the  act  was  in  its 
terms  prospective,  and  could  have  no  effect  upon  the  past. 
In  1 871  it  was  amended  by  the  addition  of  the  words  that 
conferred  retroactive  force  upon  it,  and  it  has  since  been 
so  construed  in  the  cases  of  persons  alive  when  the 
amendment  took  effect. 

148.  In  1874  came  the  law  shortening  the  time  re- 
quired for  the  gaining  of  a  settlement,  without  property, 
from  ten  years  to  five,  with  the  payment  of  three  in  place 
of  five  taxes,  with  the  important  qualification  found  in 
section  2  of  chapter  83. 

149.  Being  intended  for  the  benefit  of  unsettled  per- 
sons only  in  its  first  effect,  it  undertook  to  deal  only 
with  them  at  once,  and  reserved  its  effects  upon  those 
already  settled  to  a  future  time.  It  declared  that  any 
unsettled  person  who  had  done  the  necessary  acts  should 
be  deemed  to  have  a  settlement  by  its  passage  at  once, 
and  that  any  unsettled  person  whose  time  of  residence 
and  number  of  prescribed  taxes  were  incomplete  at  the 
time  of  the  passage  of  the  act  should,  upon  the  comple- 
tion of  the  terms,  enter  at  once  upon  a  settlement.  But 
all  those  whom  the  act  found  already  provided  must 
begin  to  gain  new  settlements  from  the  date  of  the  pas- 
sage of  the  act ;  and  after  May,  1874,  they  might  begin  to 
change  by  five  years'  residence  with  the  payment  of  three 
taxes.  The  reasonings  and  the  debates  that  accompanied 
this  legislation  are  conclusive  upon  the  point  that  the 
intention  and  purpose  of  it  are  fully  conveyed  above;  and 
there  is  no  manner  of  doubt  that,  when  the  legislature 
enacted  that  "no  existing  settlement  shall  be  changed 
unless  the  full  residence  and  taxation  herein  required 
accrue  after  the  passage  of  this  act,"  they  fully  meant  by 
"existing"  to  define  the  provisions  of  the  old  law  and 
the  status  of  those  settled  under  it. 


94  THE    SETTLEMENT    LAW  [Division  Two. 

THE    REFINEMENTS    OF    JUDICIAL    CONSTRUCTION. 

150.  Those  who  are  curious  to  see  what  refinements  of 
meaning  careful  study  will  give  to  the  plainest  language, 
may  read  in  Fitchburg  v.  Ashby,  132  Mass.  495,  how 
"existing"  may  mean  and  does  mean  a  lightning-like 
change  by  which  a  person  now  first  given  a  settlement, 
suddenly  has  an  "existing"  settlement  by  the  terms  of 
the  act  that  gives  it.  Starting  with  this  proposition, 
which  it  is  difficult  to  repeat  with  a  sober  countenance, 
the  court  proceeds  to  apply  to  the  settlement  thus  con- 
ferred the  retroactive  force  of  the  decisions  in  the  cases 
of  military  settlement,  by  which  the  person  doing  the 
acts  is  put  in  the  same  position  as  though  the  law  had 
existed  when  the  acts  were  done,  and  then  applies  to  the 
case  the  clause  that  prevents  change  from  the  status  thus 
declared  until  five  years  after  1874. 

151.  The  effect  of  this  decision  is  that  the  salutary 
provision  of  the  statute  book  in  effect  for  a  century,  that 
each  succeeding  settlement  shall  set  aside  the  preceding, 
is  quite  annulled  so  far  as  residences  and  taxes  for  periods 
of  five  years  before  1874  go;  and  now  we  must  look  for 
the  evidence  of  the  first  place,  after  May  1  i860,  and 
before  1874,  in  which  a  man  so  lived,  and  not  of  the 
last.  This  was  precisely  the  question  in  Fitchburg  v. 
Ashby.  The  man  had  lived  in  more  than  one  place  five 
years  before  1874  and  paid  the  required  taxes  in  each, 
and  the  thing  to  be  decided  was  whether  the  settlement 
was  in  the  first  or  the  later  place. 

152.  The  court  said  the  first  clause  of  the  act  settled 
him  in  the  place  where  he  first  lived,  and  the  last  clause 
forbade  that  settlement  to  be  changed  until  five  years 
after  1874.      The  late   Chief  Justice  Field  gave  an  ad- 


Division  Two]  DUE    ASSESSMENT  95 

mirable  opinion  in  opposition  to  the  majority  thus  de- 
ciding, in  which  he  placed  the  history  and  the  logical 
effect  of  the  act  in  their  true  light;  and  it  is  not  certain 
that  a  later  opinion  may  not  annul  this  singular  construc- 
tion. 

DUE    LEGAL    ASSESSMENT. 

153.  "Duly  assessed."  In  Plymouth  v.  Ware  ham, 
126  Mass.  475,  it  was  shown  that  a  man  had  paid  three 
taxes,  but  one  was  on  a  bill  made  out  by  the  collector, 
the  assessors  having  for  some  reason  omitted  to  tax  him 
in  that  year.  Though  the  money  was  duly  paid  over  by 
the  collector,  the  man  was  held  to  have  gained  no  settle- 
ment, the  fact  of  "due  assessment"  being  as  vital  as 
that  of  payment  and  one  of  the  necessary  conditions. 

EVIDENCE    OF    PAYMENT. 

154.  What  is  evidence  of  payment  of  tax?  In  many 
of  the  smaller  towns,  and  some  of  the  larger,  the  fact  of 
payment  was  often  very  difficult  to  prove  by  the  only 
absolute  authority,  the  book  of  the  collector.  This 
officer  is  by  law  under  a  bond;  and,  as  long  as  there  were 
uncollected  taxes  for  the  collection  of  which  his  sureties 
were  responsible,  he  rightfully  claimed  the  sole  custody 
of  his  books.  When  the  final  collections  were  made, 
neither  he  nor  any  other  person  cared  for  the  obsolete 
records ;  and  in  one  of  the  larger  cities  of  the  State  some 
fifteen  years'  successive  evidences  of  payments  by  the 
citizens  were  sold  in  the  later  years  of  the  war  at  junk 
price,  while  in  one  of  the  larger  towns,  where  an  exami- 
nation of  the  evidences  of  payment  of  taxes  became 
necessary,  it  was  found  that  not  one  book  of  the  fourteen 
required  remained   in   town,  but   some,    if   in   existence, 


96  THE     SETTLEMENT    LAW  [Division  Two. 

were  among  the  cast-away  papers  of  the  ex-collector  in 
the  far  west. 

155.  At  first  sight  it  might  be  thought  that  the  re- 
ceipted bill  would  be  conclusive  evidence,  but  more  than 
one  instance  has  occurred  where  in  after  years  the  name 
of  the  collector  has  been  attached  to  a  bill  by  a  person 
having  no  right  to  do  so,  for  the  purpose  of  fraud.  But, 
setting  aside  this  chance,  there  is  still  another  of  mis- 
take, of  which  at  least  one  instance  is  known.  A  man 
who  had  paid  two  taxes  wished  to  pay  the  third  for 
a  special  reason  of  personal  advantage,  though  he  had 
omitted  to  do  so  for  more  than  a  year  after  the  tax  first 
became  due.  In  due  course  the  tax,  with  many  others, 
was  legally  abated  by  the  assessors;  and  that  fact  was 
duly  entered  on  the  books  of  the  collector  against  the 
original  entry.  Now  the  man  stood  exactly  as  though 
he  never  had  been  assessed  for  that  year ;  and,  as  the  year 
was  then  past,  no  assessment  was  possible.  He  did  not 
know  of  this  abatement,  and,  having  lost  his  bill,  went 
to  the  office  of  the  collector  to  get  a  duplicate  bill  and 
to  pay  it.  A  clerk  in  the  office,  without  looking  at  the 
collector's  book,  went  to  the  assessors'  list,  which  bore 
no  mark  of  the  abatement,  made  out  a  duplicate  bill,  took 
the  money,  receipted  for  it,  placed  the  official  stamp  of 
payment  upon  it,  and  gave  it  to  the  man,  who  left  the 
office  before  the  attempted  entry  of  payment  into  the  col- 
lector's book  showed  the  mistake  that  had  been  made. 

156.  Apparently,  the  last  position  in  this  case  was 
precisely  that  of  Plymouth  v.  Wareham,  126  Mass.  475, 
the  man  having  paid  a  tax  not  "duly  assessed  "  ;  but,  if 
the  man,  in  case  of  claimed  settlement,  had  come  into 
court  with  his  three  bills  and  the  assessors'  evidence  that 
he  had  been  duly  assessed  that  year,  there  is  some  doubt 


Division  Two.]  EVIDENCE    OF    PAYMENT  97 

if  the  explanatory  evidence  could  have  been  gotten  before 
the  court. 

157.  Suppose  in  a  case  of  the  small  town,  up  among 
the  hills,  the  assessors'  list  shows  an  assessment  of  a 
poll  tax  every  year  for  eleven  years,  and  there  is  no  evi- 
dence of  the  payment  of  the  requisite  number  or  of  any. 
The  court  has  more  than  once  ruled  that  assessment  is  no 
evidence  of  payment  {Dana  v.  Petersham,  107  Mass.  598) ; 
and,  when  there  are  neither  collector's  books  nor  bills, 
there  is  no  method  of  proving  a  settlement.  Whether 
the  court  —  in  cases  where,  as  constantly  happens  in  the 
smaller  towns,  the  abatements  are  carried  into  the  rear 
of  the  assessors'  lists  or  kept  in  a  book  by  themselves,  and 
the  fact  of  the  assessment  is  proven  and  also  the  absence 
from  the  abatement  list  —  will  not  allow  the  jury  to  find 
that  assessment  minus  abatement  equals  payment,  is  not 
certain. 

158.  One  thing  is  clear:  the  past  method  or  habit, 
joined  to  strict  judicial  ruling,  has  offered  a  premium  on 
the  loss  or  destruction  of  records,  and  has  entailed  on  the 
places  which  have  carefully  kept  their  evidence  a  dis- 
proportionate share  of  the  public  burden.  It  is  proper 
to  add  that  all  this  criticism  is  of  a  condition  now  happily 
near  its  end,  and  that  the  next  generation  will  have  much 
less  difficulty  in  examining  the  records  of  their  fathers 
than  we  have  had  in  our  time,  thanks  to  the  persistent 
action  of  the  Record  Commissioner  and  the  shortening-in 
of  the  time. 

159.  It  will  be  better  to  comment  on  the  sixth  and 
seventh  clauses  together,  as  the  latter  is  explanatory  of 
the  other. 


98  THE    SETTLEMENT    LAW  [Division  Two. 

SETTLEMENTS    GAINED    BY    WOMEN    BY    RESIDENCE    ONLY. 

160.  "Sixth.  Any  woman  of  the  age  of  twenty-one 
years,  who  resides  in  any  place  within  this  State  for  five 
years  together,  shall  thereby  gain  a  settlement  in  such 
place.  Seventh.  The  provisions  of  the  preceding  clause 
shall  apply  to  married  women  who  have  not  a  settlement 
derived  by  marriage  under  the  provisions  of  the  first 
clause,  and  to  widows;  and  a  settlement  thereunder  shall 
be  deemed  to  have  been  gained  by  an  unsettled  woman 
upon  the  completion  of  the  term  of  residence  mentioned, 
although  the  whole  or  a  part  of  such  term  has  already 
elapsed."  For  a  qualification  of  great  importance,  see 
section  2  of  chapter  83. 

HISTORY    OF    WOMAN    SETTLEMENTS. 

161.  The  proposition  to  give  women  a  settlement  by 
residence,  without  payment  of  tax,  first  took  the  form  of 
law  in  1870.  That  statute  gave  a  settlement  after  ten 
years'  residence,  and  in  its  terms  became  operative  only 
from  the  time  of  its  passage.  As  only  four  of  the  re- 
quired years  had  passed  when  the  law  of  1874  was  en- 
acted, this  statute  never  went  into  operation. 

162.  The  language  of  the  sixth  clause  is  essentially 
that  of  the  woman  settlement  law  of  1874;  and  the  ex- 
planatory seventh  clause  is  the  outcome  of  litigation 
under  that  law,  having  been  enacted  in  1879. 

163.  In  the  fall  of  1876  Somerville  brought  suit 
against  Boston,  120  Mass.  574,  to  establish  the  settle- 
ment of  a  woman  more  than  twenty-one  years  old,  who 
had  lived  with  her  husband  in  Boston  five  years  since 
attaining  that  age;  but  the  court,  with  the  traditional 
reverence  for  the  status  quo,  promptly  decided  that  the 


Division  Two.]  LIMITATIONS    OF    1 8  74    LAW  99 

act  did  not  apply  to  married  women,  and  it  was  not 
until  the  seventh  clause  was  passed  in  1879  that  the  right 
to  gain  was  extended  beyond  single  women  and  widows. 
Cambridge  v.  Boston,  130  Mass.  357,  sums  up  the  reason- 
ing for  that  conclusion. 

LIMITATIONS    OF    THE    1 874    LAW. 

164.  Referring  now  to  the  effect  of  the  often-mentioned 
decision  of  Judge  Lord  in  Taunton  v.  Boston,  131  Mass. 
18,  these  limitations  of  the  law,  not  set  down  in  the 
statute,  appear. 

165.  First,  THE  DESCENDANTS  OF  NO  WOMAN  CAN  HOLD 
BY  HER  FIVE  YEARS  UNLESS  SHE  WAS  ALIVE  AT  THE 
TIME  OF  THE  PASSAGE  OF  THE  ACT  OF  1 874.  ScCOtld, 
THE  DESCENDANTS  OF  NO  MARRIED  WOMAN  CAN  HOLD  BY 
HER  FIVE  YEARS  AS  A  MARRIED  WOMAN  UNLESS  SHE  WAS 
ALIVE  AT  THE  TIME  OF  THE  PASSAGE  OF  THE  ACT  OF    I  879. 

It  is  proper  here  to  again  remind  the  reader  that  all 
the  considerations  of  these  two  clauses  are  absolutely 
subordinate  to  settlement  by  the  husband,  unless  for  a 
five  years  after  his  death;  and,  if  he  allows  the  facility 
of  proof  of  these  to  divert  him  from  the  true  course  of 
the  responsibility,  his  mistake  will  be  costly  to  the  place 
whose  interests  he  defends. 

TOWN    MAY    PROVE    BY    MOTHER. 

166.  This  seems  the  more  necessary  to  say,  because 
the  language  of  the  court  in  Abington  v.  Duxbury,  105 
Mass.  287,  and  Dana  v.  Petersham,  107  Mass.  598,  gave 
a  town  the  right  to  prove  a  settlement  by  the  mother  with- 
out first  showing  one  to  be  impossible  by  the  father, —  a 
most  valuable  right,  which  all  places  may  often  be  glad 
to  exercise,  and  yet  a  most  deceptive  or  treacherous  right, 


IOO  THE    SETTLEMENT    LAW  [Division  Two. 

held  only  by  a  contingency,  and  liable  to  become  worth- 
less with  each  new  item  of  news.  While  it  is  true  that 
many  cases  must  finally  be  decided  upon  that  basis,  it  is 
equally  true  that  an  investigator  who  rests  in  that  conclu- 
sion, because  he  means  to  put  the  labor  and  expense  of 
determining  the  controlling  fact  on  the  place  where  the 
woman  is  settled,  puts  his  case  into  great  danger. 

167.  If  A.  notifies  B.  that  the  wife  is  surely  settled 
with  him,  and  he  shall  hold  him  unless  he  can  show  a 
settlement  elsewhere  by  the  husband,  A.  practically  asks 
B.  to  do  A.'s  work  and  give  A.  the  benefit  of  the  labor. 
This  is  all  right,  if  A.  has  done  all  he  can;  and,  if  B. 
knows  or  can  learn  more,  it  is  his  duty  to  tell  what  he 
knows.  But  in  the  other  case  it  is  an  unreasonable 
request,  as  it  is  right  that  each  town  should  do  its  own 
work;  and  one  has  no  right  to  make  another  undertake 
such  labor  under  a  threat.  If  the  town  notified  knows  its 
rights,  it  will  so  conduct  its  case  that  it  will  be  little 
likely  to  be  so  annoyed  a  second  time.  If  it  establishes 
a  settlement  that  relieves  it  of  responsibility,  it  has  only 
to  deny,  and  it  is  no  part  of  its  duty  to  tell  the  ground  of 
its  denial ;  for  it  is  enough  that  its  ground  is  sure,  and  it 
has  only  found  out  what  it  was  the  duty  of  the  other  to 
have  learned  in  the  first  instance.  If  called  into  court 
it  can  prove  its  case  and  the  plaintiff  will  be  nonsuit. 
The  time  will  probably  have  gone  by  in  which  he  could 
notify  the  real  defendant,  and  he  will  have  no  recourse. 
But  the  days  are  gone  by  in  which  the  towns  played  such 
sharp  games  with  each  other  as  shamed  the  inventors,  and 
now  there  is  a  spirit  of  concession  and  respect  for  the 
rights  of  others  that  bears  its  proper  fruit,  in  a  disposi- 
tion to  give  as  one  would  be  willing  to  receive. 

168.  As  the  question  of  settlement  by  residence  alone 


Division  Two.]      ABSENCE  AFFECTING  SETTLEMENT  IOI 

lacks  for  its  solution  the  evidence  of  the  tax-book,  and 
often  of  the  directory  as  well,  it  follows  that  the  fact  is 
often  more  difficult  to  determine,  especially  in  the  case 
of  an  obscure  widow  or  unmarried  woman  than  in  that  of 
a  man  or  of  a  wife  with  children.  It  is  unnecessary  to 
repeat  here  the  suggestions  that  were  made  in  the  earlier 
pages  of  this  treatise  as  to  the  best  methods  of  arriving 
at  the  facts,  and  we  will  pass  from  the  consideration  of 
these  clauses  with  a  few  brief  suggestions  as  to  some 
special  conditions  not  included  as  yet  in  recorded  decis- 
ions. 

ABSENCE  AS  AFFECTING  SETTLEMENT. 

169.  Since  the  passage  of  the  1874  amendments  a  ques- 
tion entirely  new  in  its  present  bearings  has  arisen; 
namely,  as  to  their  effect  on  persons  not  then  or  since 
within  the  State  limits.  If  a  man  had  lived  in  a  place 
five  years,  1860-65,  anc^  paid  all  poll-taxes,  had  gone 
west  1866,  and  died  there  in  1870,  the  son  now  return- 
ing in  distress  could  claim  nothing  through  that  residence 
and  those  taxes;  but  how  if  the  man  lives  in  the  West 
until  after  1874,  and  he  and  the  son  die  there,  and  the 
son's  widow  and  children  come  back  in  1890?  The  court 
in  Fitchburg  v.  Athol,  130  Mass.  370  passed  upon  this 
question,  but  in  such  measured  phrase  that  it  gives  little 
light  on  any  case  not  exactly  like  that.  We  learn  that 
neither  one  who  left  the  State  in  1854  and  never  came 
back,  nor  his  son  who  went  away  in  1857  and  never  came 
back,  nor  the  wife  of  the  son  who  becomes  a  pauper  in 
Massachusetts  after  1874,  gains  any  rights  under  that 
statute,  but  whether  a  smaller  period  of  absence  on  the 
part  of  either,  before  1874,  and  if  so  how  much  smaller, 
would  have  the  same  effect,  cannot  be  inferred  from  the 
opinion. 


102  THE     SETTLEMENT     LAW  [Division  Two. 

CHANGES    IN    HABITS    OF    PERSONS    TO    WHOM    LAWS    APPLY. 

170.  The  changes  that  have  taken  place  during  the 
present  century  in  the  habits  and  mode  of  life  of  the 
hired  help,  whether  in  families  or  in  mechanical  occupa- 
tions, have  brought  about  conditions  that  must  modify 
the  letter  and  the  spirit  of  both  legislation  and  judicial 
opinion  in  order  to  conform  to  the  new  order  of  things. 
Fifty  years  ago  the  conditions  of  the  people  were  fixed 
and  stable.  The  position  of  hired  laborer  or  domestic 
was  temporary  in  its  nature,  the  farm  laborer  being  on 
the  way  to  own  a  farm,  and  the  domestic  to  the  condi- 
tion of  marriage  and  the  keeping  of  a  family.  Means  of 
conveyance  were  so  lacking  and  so  costly  that  persons  re- 
mained essentially  where  they  were  born,  and  to  be  going 
from  place  to  place  and  from  one  occupation  to  another 
year  after  year  was  to  get  the  unfavorable  reputation  of  a 
"rolling  stone." 

171.  In  place  of  this  primitive  condition  we  now 
have  a  population,  numbered  by  thousands,  liable  to  fall 
into  distress  at  any  time,  often  having  no  association  or 
connection  with  any  place  other  than  that  in  which  the 
best  bargain  can  temporarily  be  made,  and  possessed  by 
no  purpose  of  living  that  may  not  be  changed  by  the 
demand  for  the  product  that  they  make.  Thus  their  stay 
in  a  given  place  is  conditional,  and  the  purpose  to  re- 
main depends  upon  elements  over  which  the  laborer  has 
practically  no  control. 

COMMON    CASE    CITED. 

172.  If  the  case  is  that  of  a  factory  operative  the  fact 
may  be  that  she  worked  in  Webster  three  years,  and  then 
the  mill  shut  down  and  she  heard  that  she  could  have  a 


Division  Two.]  DOMICIL    OF    OPERATIVES  IO3 

place  in  Worcester  in  a  family.  So  she  left  her  name 
at  the  mill  office,  and  the  agent  agreed  to  send  for  her  if 
work  opened  up  better  in  the  spring.  But  it  did  not,  and 
she  took  a  place  in  a  family  in  Millbury  through  the 
summer.  Then  in  the  fall,  hearing  that  the  Webster 
mill  was  opened  again,  she  went  back.  Has  she  a  domi- 
cil  in  Webster  at  the  end  of  five  years? 

Consider  another  question.  Half  a  dozen  railroads 
centre  at  Worcester,  and  one  seeking  to  go  from  one  part 
of  the  county  to  another  by  railroad  almost  inevitably 
goes  through  the  city.  Moreover,  it  is  the  natural  clear- 
ing-house of  the  county,  and  women  looking  for  places 
go  there  to  find  them.  Many  knowing  that  their  stay  in 
any  of  the  suburban  towns  will  hardly  be  more  than  a 
year  or  two,  find  it  convenient  to  hire  permanently  a 
room  in  the  city  where  they  can  keep  a  trunk  and  where 
they  can  stay  a  week  or  a  month  when  out  of  a  place. 
They  will  swear  truly  that  they  always  meant  to  come 
back  to  this  trunk,  or  to  the  city  or  town  in  which  they 
left  it,  when  their  suburban  place  was  lost.  When  they 
have  so  hired  for  five  years,  is  their  domicil  where  the 
trunk  has  been  and  where  perhaps  themselves  have  lodged 
six  months  in  that  time?  If  they  are  gaining  a  domicil 
by  the  fact  of  paying  room-rent  in  a  place  where  they 
come  only  when  the  only  home  they  have  is  lost ;  namely, 
that  where  they  temporarily  worked,  what  shall  we  say  of 
their  status  when  they  have  lived  five  full  years  in  one 
of  these  working-places?  Can  we  doubt  that  they  would 
be  considered  to  have  gained  in  the  place  where  they  had 
so  lived?  And  if  we  do  so  decide,  can  we  hold,  soberly, 
that  a  woman  can  be  gaining  by  her  residence  in  Leices- 
ter and  by  her  trunk  in  Worcester  at  one  and  the  same 
time? 


104  THE    SETTLEMENT    LAW  [Division  Two. 

173.  Wilbraliam  v.  Ludloiv,  99  Mass.  587  has  some 
comments  on  the  question  of  domicil  while  wandering 
from  place  to  place,  without  purpose,  and  it  is  quite 
likely  that  when  the  cases  arise,  it  may  be  found  that 
some  of  those  which  we  now  decide  upon  principles 
adapted  to  a  more  stationary  population,  will  be  referred 
to  the  rule  there  set  down. 

PAUPERIZATION    OF    MOTHER    BY    AID    TO    CHILD. 

174.  It  is  interesting  to  note  that  among  the  princi- 
ples applicable  to  women  since  the  1874  legislation, 
through  judicial  construction,  though  finding  its  justi- 
fication in  rulings  three  hundred  years  old,  is  this;  that 
aid  granted  to  a  minor  child  will  not  interfere  with  the 
gaining  of  a  settlement  by  the  mother  in  the  same  five 
years.  This  is  clearly  set  forth  in  Gleason  v.  Boston, 
144  Mass.  25,  and  a  succinct  statement  of  the  facts  re- 
ported will  aid  the  reader  in  understanding  the  details 
of  the  case,  not  forgetting  that  the  1898  legislation  has 
put  the  mother  hereafter  under  the  same  civil  disabili- 
ties as  the  father  was  under  before. 

175.  The  father  of  the  child  was  living  away,  and  not 
contributing  to  its  support  or  that  of  the  mother.  The 
woman  was  working  and  paying  the  board  of  the  child, 
and  the  court  held  that  a  sum  of  money  advanced  by  the 
Overseers  of  the  Poor  of  Boston,  for  the  payment  of  the 
child's  board  did  not  affect  the  status  of  the  mother,  as 
she  was  not  responsible  for  the  support  of  the  child. 
There  was  nothing  in  the  opinion  given  by  the  court  that 
gave  ground  for  the  inference  that  the  aid  would  not  have 
prevented  settlement,  if  shared  by  the  mother  in  her 
home,  as  the  case  turned  on  the  fact  that  the  aid  was 
solely  and  exclusively  for  the  child,  and  no  question  was 
raised  of  the  mother's  being  entirely  self-supporting. 


Division  Two.]      THE  MILITARY  SETTMEMENT  LAW  IO5 

176.  There  have  been  no  decisions  in  the  last  twenty 
years  relating  to  settlements  gained  under  the  eighth, 
ninth,  and  tenth  clauses,  and  students  will  find  in 
Crocker's  notes  and  in  Mr.  Hale's  Manual  all  the  older 
decisions. 

THE    MILITARY    SETTLEMENT    LAW. 

177.  The  military  settlement  law  will  be  found  in 
"Clause  eleventh  : — Any  person  who  was  duly  enlisted 
and  mustered  into  the  military  or  naval  service  of  the 
United  States,  as  a  part  of  the  quota  of  any  city  or  town 
in  this  Commonwealth  under  the  call  of  the  President  of 
the  United  States  during  the  late  civil  war,  or  duly 
assigned  as  a  part  of  the  quota  thereof  after  having  been 
enlisted  and  mustered  into  said  service  and  who  duly 
served  for  not  less  than  one  year,  or  died  or  became  dis- 
abled from  wounds  or  disease  received  or  contracted 
while  engaged  in  such  service,  or  while  a  prisoner  in  the 
hands  of  the  enemy,  and  his  wife  or  widow  and  minor 
children  shall  be  deemed  thereby  to  have  acquired  a 
settlement  in  such  place,  and  any  person  who  would 
otherwise  be  entitled  to  a  settlement  under  this  clause, 
but  who  was  not  a  part  of  the  quota  of  any  city  or  town, 
shall,  if  he  served  as  a  part  of  the  quota  of  the  Common- 
wealth, be  deemed  to  have  acquired  a  settlement  in  the 
place  where  he  actually  resided  at  the  time  of  his  enlist- 
ment. But  these  provisions  shall  not  apply  to  any  per- 
son who  enlisted  and  received  a  bounty  for  enlistment  in 
more  than  one  place,  unless  the  second  enlistment  was 
made  after  an  honorable  discharge  from  the  first  term  of 
service,  nor  to  any  person  who  has  been  proved  guilty  of 
wilful  desertion,  or  who  left  the  service  otherwise  than 
by  reason  of  disability  or  an  honorable  discharge." 

178.  The  first  military  settlement  law  was  passed  May 


106  THE    SETTLEMENT    LAW  [Division  Two. 

13th  1865.  As  was  before  observed,  it  restricted  the 
benefit  of  settlement  to  persons  who  had  for  six  months 
before  been  residents  of  the  place  on  the  quota  of  which 
they  served,  and  who  had  attained  the  age  of  twenty-one 
years.  But  it  carefully  provided  that  the  families  of 
those  serving  on  the  quota  of  any  place  should  receive 
relief  at  its  hands  or  in  any  other  place  where  they 
might  fall  into  distress,  in  a  special  form  and  not  in  the 
State  Almshouse,  even  when  not  technically  settled. 
Where  the  present  act  provides  that  the  claimant  shall 
have  "duly  served"  one  year  it  reproduces  the  language 
of  the  act  of  1865. 

VARIATION    IN    TERMS. 

179.  A  later  modification  provided  that  he  must  have 
"continued  in  such  service  for  one  year,"  the  present 
wording  having  been  reintroduced  with  the  codification  in 
1878.  An  amendment  in  1868  struck  out  the  require- 
ment of  previous  residence,  and  omitted  the  age  qualifi- 
cation, and  both  disappear  from  that  time.  It  was  not 
until  1870  that  the  provision  giving  settlements  to  resi- 
dents who  served  on  the  State  quota  and  were  not  cred- 
ited to  any  city  or  town,  was  passed,  and  the  only  essen- 
tial modifications  since  1878  are  those  that  have  come  by 
judicial  interpretation. 

JUDICIAL    INTERPRETATIONS    OF    THE    LAW. 

180.  In  no  department  of  the  law  relating  to  the  relief 
of  dependents  have  the  decisions  more  taken  the  color  of 
legislative  enactment  than  in  this.  The  result  aimed  at 
has  been  wholly  equitable  and  in  the  interest  of  human- 
ity and  fair  dealing,  but  it  is  impossible  to  see  in  some 
of  the  decisions  any  of  that  unwillingness  to  go  beyond 


Division  Two.]  JUDICIAL    EXTENSIONS  IO7 

the  strict  letter  of  the  statute  which  the  court  has  often 
claimed  for  itself. 

181.  Thus,  the  statute  sets  out  to  define  a  class  to 
whom  the  benefits  of  the  enactments  shall  be  extended, 
limiting  its  application  to  the  date  of  a  named  event, 
and  it  is  impossible  to  see,  how,  under  this  clause,  one 
who  was  in  the  service  before  there  was  any  call  for 
troops,  can  be  considered  as  enlisting  under  that  call. 

CASE    CITED. 

182.  But  in  Boston  v.  Mt.  Washington,  139  Mass.  15 
it  was  held  that  a  man  who  was  already  enlisted  and 
in  the  service,  and  by  clerical  error  was  included  in 
the  list  of  men  counted,  was  to  be  considered  as  hav- 
ing gained  a  settlement  in  the  place  to  which  he  was 
assigned  by  the  commission  which  sat  for  that  purpose. 
The  court  says,  in  effect,  "The  assignment  was  irregu- 
lar, and  should  not  have  been  made,  but  you  got  the 
benefit  of  the  mistake,  and  it  does  not  become  you, 
twenty  years  after,  to  come  in  and  ask  to  be  relieved  of 
the  consequences  of  a  condition  which  you  would  gladly 
have  created  at  the  time.  " 

A    MAN     ILLEGALLY    IN    THE    SERVICE    GAINED. 

183.  The  case  of  Sheffield  v.  Otis,  107  Mass.  282 
where  a  man  after  being  a  year  in  the  service  was  dis- 
charged as  never  having  been  legally  mustered,  illus- 
trates another  phase  of  the  tendency  to  attain  to  equity, 
rather  than  to  follow  the  letter  of  the  law. 

What  does  the  law  consider  a  year's  continuance  in 
the  service?  In  this  as  in  other  applications  it  takes  no 
account  of  parts  of  a  day,  and  if  a  man  enlisted  July  1, 
1862,  and  was  discharged  June  30,  1863,  it  will  consider 


108  THE    SETTLEMENT    LAW  [D 

him  as  serving  a  year,  though  the  enlistment  was  in  the 
afternoon,  and  the  discharge  in  the  morning.  But  where 
the  validity  of  an  act  depends  upon  the  time  of  day  when 
it  was  done,  evidence  will  be  admitted  to  determine  the 
point. 

A  woman  marrying  on  the  day  of  the  death  of  a  former 
husband,  would  be  presumed  to  be  legally  married,  but 
a  court  would  hear  evidence  that  she  was  married  in  the 
morning,  and  that  the  husband  did  not  die  till  night. 
In  6  Gray  is  a  case  where  the  validity  of  an  act  turned  on 
the  question  of  the  precise  hour  in  the  day  in  which  a 
writ  issued,  it  having  been  done  on  the  day  in  which  the 
law  affecting  the  case  took  effect. 

WHEN  DO  LAWS  TAKE  EFFECT? 

It  is  an  error  more  or  less  widely  spread  in  the  com- 
munity, that  all  laws  have  a  certain  period  between 
enactment  and  operative  effect,  presumably  for  the  pur- 
pose of  giving  all  an  opportunity  to  learn  their  provi- 
sions. Reference  to  chapter  3,  section  1,  of  the  Public 
Statutes  will  demonstrate  the  error,  and  will  show  how 
it  originated.  Of  three  classes  of  enactments  only  one, 
namely  those  to  which  no  time  of  taking  effect  is  an- 
nexed, have  any  intermediate  period :  these  have  thirty 
days.  Of  the  other  two,  those  to  take  effect  at  a  named 
day  in  the  future,  take  effect  on  that  day,  and  those 
which  by  their  terms  go  into  operation  from  and  after 
their  passage,  are  operative  from  the  hour  in  which  the 
governor  approves  them,  or  from  that  in  which  they  be- 
come laws  by  any  other  legal  form. 

184.  "Duly  assigned  "  covers  the  cases  of  the  naval 
enlistments  which  after  being  collected  from  the  books 
of  the    receiving-ship,    were   distributed    proportionately 


Division  Two]  MILITARY    SETTLEMENT  IO9 

among  the  cities  and  towns  by  the  commission  of  which 
Ex-Governor  Clifford  was  chairman.  In  the  first  years 
of  the  war  the  seaport  towns  lost  half  as  many  men  as  in 
the  inland  towns  were  available  for  the  army,  by  the  rush 
that  took  place  into  the  naval  service.  Of  the  crew  of 
one  of  the  cruisers  which  carried  the  flag  into  the  Medi- 
terranean in  1 861,  all  but  a  small  fraction  were  from 
Marblehead,  and  the  "Niagara"  frigate  largely  recruited 
her  seamen  in  Gloucester  in  the  year  after.  In  1863 
there  were  nearly  thirty  thousand  Massachusetts  men, 
serving  in  the  navy  and  not  included  in  any  assignment 
of  quotas.  As  they  had  gone  almost  wholly  from  half  a 
dozen  seaports,  and  had  by  their  going,  in  that  degree 
diminished  the  capacity  of  their  several  places  of  abode 
to  furnish  men,  there  seems  to  have  been  no  good  reason 
why  they  should  not  have  been  counted  and  assigned 
wholly  among  the  towns  of  their  residence,  and  the  some- 
what communistic  principle  on  which  the  inland  towns 
were  allowed  to  share  in  the  credits  of  these  men,  cer- 
tainly showed  no  lack  of  generosity  in  the  chairman, 
himself  a  New  Bedford  man.  As  said  before  it  was  one 
of  these  "duly  assigned  "  men,  who  was  unduly  assigned 
by  error,  whose  case  raised  the  question  in  Boston  v. 
Mount  Washington,  130  Mass.   15. 

CHANGE    IN    TERMS    OF    THE    LAW. 

185.  "Duly  served,"  "continued  in  such  service" 
seemingly  equivalent  terms,  have  proven  on  trial  to  mean 
very  different  things.  Judge  Devens  in  Lunenburg  v. 
Shirley,  132  Mass.  498  says  that  men  who  deserted  and 
escaped  to  Canada  were  always  amenable  to  military  law, 
and  so  were  in  the  strictest  sense  continuously  "in  the 
service,"  while  by  no  fiction  could  such  men  be  con- 
sidered as  "duly  serving.  " 


IIO  THE    SETTLEMENT    LAW  [Division  Two. 

186.  "While  engaged  in  such  service"  still  waits  for 
a  competent  definition,  and  the  constructions  put  upon 
the  words  cover  all  the  space  between  the  lavishness  that 
would  give  the  soldier  everything,  and  the  rigid  con- 
struction that  would  leave  him  nothing.  Some  persons 
who  have  thought  that  the  disability  clause  was  intended 
to  do,  under  State  law,  as  much  as  and  no  more  than  the 
General  Government  does  under  the  pension  system,  have 
argued  that  some  specific  act  or  condition  by  which  the 
man  was  specially  injured  while  a  soldier  is  necessary  to 
be  shown;  that  all  men,  with  advancing  years,  have 
rheumatism  and  bronchitis,  and  that  the  State  never  in- 
tended to  guarantee  against  these,  but  only  against  such 
ills  as  come  specially  by  the  exposures  and  perils  of  war, 
and  Ashland  v.  Marlboro,  106  Mass.  266,  certainly  sup- 
ports that  construction.  To  this  it  is  answered  that  it  is 
mean  to  split  hairs  with  the  men  who  dared  and  risked 
everything  that  we  might  now  have  the  leisure  to  sit  in 
judgment  on  their  rights,  and  that  "while  engaged  in" 
clearly  means  while  under  contract  to  do  the  work  of  en- 
listed men.  The  other  party,  unconvinced,  answers  that 
the  inclusion  contended  for,  brings  in  conditions  so  inde- 
fensible that  no  man  could  contend  for  them  for  a  minute. 

187.  Thus,  a  man  returning  from  leave  of  absence, 
comes  on  board  ship  while  still  drunk.  He  pitches  over 
the  gangway  to  the  deck,  fractures  both  wrists,  and  is 
permanently  lamed.  All  this  happened  during  his  term 
of  enlistment,  but  was  his  disability  received  or  con- 
tracted "while  engaged  in  such  service"  ? 

MUTINY    DURING    PERIOD    OF    ENLISTMENT. 

188.  A  company  of  sailors  going  to  Aspinwall  under 
charge  of  an  officer,    form  a  plan  to   rise  and  take  the 


Division  Two.]  MILITARY    DISABILITY  III 

steamer  on  which  they  are  passengers.  It  becomes 
necessary  to  shoot  and  kill  the  leader.  The  hardiest 
claimant  for  service  pensions  and  unlimited  aid  to  the 
wearers  of  the  blue  and  their  posterity,  would  hardly  see 
his  way  clear  to  ask  a  reward  for  such  service  as  this, 
ending  with  such  a  death,  but  if  "while  engaged  in  such 
service"  means  "during  the  period  of  his  enlistment," 
it  is  certainly  true  that  this  man  met  his  death  within 
the  time  named. 

CONSTRUCTION    OF    DISABILITY    CLAUSE. 

189.  In  the  other  extreme  of  construction  of  the  lan- 
guage of  the  act  we  have  the  case  of  a  man  who  fell  from 
his  hammock  at  night  upon  a  bolt  in  the  deck  below,  and 
fractured  his  spine.  This  literal  constructionist  says 
there  can  be  no  greater  absurdity  than  to  claim  that  a 
man  can  be  "engaged  in"  any  "service"  while  he  is 
asleep. 

That  proposition  he  never  will  concede,  and  a  man 
must  be  prepared  to  show  some  act  of  real  service  before 
his  claim  can  be  entertained.  What  this  extremist  would 
say  to  the  claim  of  the  family  of  a  man  whose  body  was 
cut  in  two  while  lying  in  his  hammock  at  night,  by  a 
shell  from  a  shore  battery,  does  not  appear,  except  that 
the  "or  died"  clause  might  make  him  doubt,  but  to  the 
average  reasoner  his  case  does  not  appear  different,  in 
principle,  from  that  of  the  man  who  fell.  But  twenty 
years  ago,  in  a  suit  in  the  Superior  Court  where  an 
official  discharge  under  the  seal  of  the  Navy  Department 
was  offered,  with  the  personal  evidence  of  the  surgeon 
who  made  it  that  it  could  have  been  made  only  as  the  re- 
sult of  direct  observation,  to  the  effect  that  a  boy  seven- 
teen years  old  was  discharged  from  a  Naval  Hospital, 
after   three    months'    service,    of  which  only  two  weeks 


112  THE    SETTLEMENT    LAW  [Division  Two. 

were  on  a  ship  in  commission,  by  reason  of  habits  of  self- 
pollution,  the  judge  refused  to  allow  the  evidence  to  go 
to  a  jury,  and  ordered  a  verdict  for  the  plaintiff,  saying 
that  if  towns  submitted  boys  to  the  possible  contamina- 
tions of  the  berth-deck,  they  must  abide  by  the  results. 
As  bearing  on  the  credibility  of  evidence,  it  is  worth 
stating  that  the  boy  in  question,  then  a  man  of  thirty, 
and  father  of  three  children,  stated,  under  oath,  that  so 
far  was  he  from  being  guilty  of  the  offence  charged,  that 
he  had  no  idea  now  in  what  it  consisted.  The  judge 
appears  to  have  believed  this.  The  case  was  not  ap- 
pealed. 

Meantime  the  courts  have  not  tried  to  establish  a 
formula  to  which  all  cases  can  be  adjusted,  and  at  pres- 
ent each  case  is  tried  upon  its  individual  merits.  Least 
of  all  have  they  formulated  such  a  hard-and-fast  rule  as 
that  announced  by  the  Pension  Bureau,  in  1864,  by 
which  an  inherited  tendency  to  certain  forms  of  disease 
shown  to  exist,  as  rheumatism  and  consumption,  out- 
weighed all  evidence  of  contraction  in  the  line  of  duty, 
and  caused  the  rejection  of  a  given  claim.  So  far  as 
it  goes,  the  weight  of  decision  is  mildly  in  favor  of 
the  proposition  that  the  disability  must  be  shown  to  be 
the  result  of  some  act  or  condition  in  the  line  of  duty  in 
the  term  of  the  enlistment. 

DISABILITY    THAT    GIVES    NO    SETTLEMENT. 

190.  That  there  are  forms  of  disability  which  termi- 
nate a  man's  service  in  less  than  a  year,  which  neverthe- 
less give  no  claim  for  settlement,  appears  from  Ashland 
v.  Marlboro,  106  Mass.  266.  In  this  case  the  court 
says  that  in  a  certificate  of  discharge  for  disability  which 
does  not  give  the  cause  of  discharge,   there   is   no  pre- 


Division  Two.]  TWO    DISABILITIES  II3 

sumption,  (as  there  is  in  the  case  of  ordinary  discharge 
which  is  presumed  to  be  honorable  if  not  stated  other- 
wise, Brockton  v.  Uxbridgc,  138  Mass.  292)  but  it  is  in 
each  case  a  question  of  fact.  And  in  South  Scituate  v. 
Scitiiate,  155  Mass.  428,  with  a  neutral  certificate  of  dis- 
ability causing  discharge,  the  Court  admitted  parole  evi- 
dence of  epilepsy  before  enlistment. 

TWO    CERTIFICATES    OF    DISABILITY. 

191.  The  most  embarrassing  cases  are  those  in  which 
there  are  two  discharges  for  disability.  Reference  to 
the  terms  of  the  act  will  at  once  establish  the  proposi- 
tion that  if  no  additional  disability  is  contracted  under 
the  second  enlistment,  no  new  settlement  will  be  ac- 
quired by  such  service  and  discharge,  and  that  view  is 
affirmed  in  Way  land  v.  Ware,  104  Mass.  46.  Under 
this  statute  and  decision  A.  B.  who  was  discharged  for 
gunshot  wound  in  the  chest,  after  ten  months'  service, 
who  a  year  later  enlisted  on  another  quota  as  a  veteran, 
but  found  that  his  strength  was  not  equal  to  the  pressure 
of  his  belts,  and  the  labors  of  the  drill,  and  so  was  again 
discharged  after  four  months'  trial,  gained  no  new  settle- 
ment by  his  second  service,  but  remained  settled  by  the 
first. 

192.  The  trouble  in  these  cases,  as  they  now  arise  is, 
that  the  discharging  officers  could  not  look  far  enough 
into  the  future  to  guess  what  the  requirements  of  the 
laws  would  be,  and  so  satisfied  themselves  with  certifi- 
cates that  omitted  much  that  is  vital  to  the  decision. 

WILFUL  DESERTION ABSENCE  WITHOUT  LEAVE. 

193.  "Or  who  has  been  proved  guilty  of  wilful  deser- 
tion."     Absence    without    leave    is    not    desertion,    but 


114  THE    SETTLEMENT    LAW  [Division  Two. 

Milford  v.  Uxbridge,  130  Mass.  107  defines  it  as  the 
crime  known  to  the  Articles  of  War.  Fitchburg  v. 
Lunenburg,  102  Mass.  358  and  Hanson  v.  South  Scituate, 

115  Mass.  336  set  forth  the  doctrine  that  the  offence 
must  be  proven  by  trial  and  conviction,  a  charge  not 
being  sufficient. 

DESERTION    AFTER    HONORABLE    DISCHARGE. 

194.  A  very  intricate  question  was  presented  for  the 
decision  of  the  court  in  the  case  of  Cambridge  v.  Paxton, 
144  Mass.  520.  A  man  served  in  the  navy  on  the  quota 
of  Paxton  more  than  a  year,  and  was  honorably  dis- 
charged. He  then  served  on  the  quota  of  Boston,  and 
ran  away.  He  gained  no  civil  settlement  after  the  war. 
Cambridge  argued  that  as  the  court  had  repeatedly  said 
in  the  last  ten  years,  that  all  these  cases  must  be  decided 
as  though  the  present  laws  had  been  in  force  when  the 
acts  were  done,  it  followed  that  upon  the  honorable  dis- 
charge from  the  first  service  the  man  must  be  considered 
as  then  having  gained  a  settlement  that  no  subsequent 
misconduct  could  take  away.  Those  curious  in  follow- 
ing the  reasoning  by  which  the  Supreme  Court  avoids 
deposition  into  a  cavity  on  one  side,  and  injustice  on 
the  other,  will  read  the  opinion  of  Judge  Devens,  in  this 
case,  with  much  interest,  for  that  opinion  maintains  the 
honor  and  dignity  of  the  faithful  soldier,  while  it  care- 
fully vindicates  the  consistency  of  the  court. 

195.  As  was  said  before,  the  giving  of  a  retroactive 
effect  to  statutes  not  in  terms  so  expressed,  is  the  natural 
extension  of  that  principle  as  distinctly  seen  and  ex- 
pressed in  the  military  law. 

196.  The  first  instance  of  it  was  in  a  question  of  the 
effect  of  the  law  of   1874  as   set  forth   in  Worcester  v. 


Division  Two.]        WHEN    SETTLEMENT    IS    GAINED  I  1 5 

Springfield,  127  Mass.  540.  As  the  history  of  the  case 
involves  a  consideration  of  some  of  the  vital  changes  of 
the  last  thirty  years,  and  as  an  understanding  of  it  is 
necessary  to  a  comprehension  of  Cambridge  v.  Paxton, 
it  will  be  profitable  to  spend  a  short  time  in  a  con- 
sideration of  the  facts  upon  which  the  decision  was 
based. 

197.  A  man  born  abroad  of  an  unnaturalized  parent, 
applied  for  aid  in  1877.  He  was  more  than  twenty-one 
years  old  in  1862,  when  he  began  to  live  in  a  place,  and 
lived  there  until  1867,  paying  three  taxes  in  the  five 
years.  He  gained  a  settlement  there  unless  he  had  one 
before,  having  gained  none  since,  so  that  when  he  ap- 
plied for  help  in  1877,  the  question  arose  whether  he  in 
1862  had  an  "existing  settlement."  If  he  had,  the  resi- 
dence and  taxation  between  1 862-1 867  had  no  effect  in 
changing  it,  but  if  he  had  none,  he  became  settled  in 
1867,  as  that  was  his  only  five  years'  residence  since 
coming  of  age  in  1861.  He  was  twelve  years  old  when 
his  father  landed  in  1852,  and  the  father  had  only  nine 
years  in  which  to  gain  a  settlement  that  the  son  could 
take  before  1861. 

198.  Directly  after  coming  to  the  State  the  father 
bought  a  freehold  in  W.  and  lived  on  it  more  than  three 
years  before  the  son  was  of  age.  By  so  owning  and  'liv- 
ing he  would  have  then  acquired  a  settlement,  only  for 
the  fact  that  he  never  became  a  citizen.  When  the  son 
became  of  age  the  father  had  no  settlement,  as  the  law 
then  stood,  nor  for  ten  years  after.  In  1868  (chapter 
328,  section  1)  an  act  was  passed,  repealing  the  provision 
of  citizenship  as  a  requisite  to  settlement,  and  in  Com- 
monwealth v.  Sudbury,  106  Mass.  268,  the  court  denied 
retroactive  force  to  the  enactment.      So   it  was  not  until 


I  I  6  THE     SETTLEMENT    LAW  [Division  Two. 

the  amendment  to  the  1868  Statute,  in  chapter  379  of 
the  Statutes  of  1871,  that  the  father  first  became  vested 
in  a  settlement.  But  though  the  son  had  then  long 
ceased  to  be  a  minor,  the  court  held  that  the  settle- 
ment of  the  father  took  effect  at  the  end  of  three  years' 
occupancy,  and  that  the  son,  then  being  a  minor,  would 
have  the  benefit  of  the  right,  so  that  he  would  have  an 
"existing  settlement,"  and  not  rely  upon  his  own  resi- 
dence in  S.  between  1862  and  1867.  For  the  applica- 
tion of  this  principle  to  the  conditions  of  military 
settlement,  the  reader  may  consult  Newburyport  v. 
Wortkington,  132  Mass.  510.  After  this  digression 
which  seemed  necessary  to  a  proper  understanding  of 
the  brief  of  Cambridge  in  the  Paxton  suit,  we  return 
to  a  consideration  of  the  statutes  of  military  settle- 
ment. 

199.  "Or  who  left,"  not  "who  shall  be  proven,"  as  in 
the  preceding  clause,  but  the  simple  matter  of  fact,  to  be 
determined  by  the  existence  or  non-existence  of  an  hon- 
orable discharge.  In  the  other  case  a  hearing  and  re- 
corded finding  of  the  result  are  necessary,  here  it  is  a 
question  of  fact,  and  to  be  determined  by  a  paper  in  the 
hands  of  the  claimant  perhaps,  but  certainly  by  the 
papers  on  file  at  Washington.  In  the  case  of  the  soldier 
final  discharge  papers  were  made  on  durable  parchment 
and  were  thus  reasonably  sure  of  preservation. 

ABSENCE    OF    NAVAL    DISCHARGE    COMMON. 

200.  The  navy  discharges,  from  time  immemorial, 
have  been  made  on  slips  of  ordinary  paper,  and  it  is  their 
common  fate  to  be  in  four  pieces  at  the  end  of  the  first 
year,  and  thereafter  to  be  mounted  upon  a  piece  of  blank 
paper  that  covers  the  descriptive  list  on  the  back.      The 


Division  Two.]  HONORABLE    DISCHARGE  I  1 7 

care  with  which  the  records  of  a  man  are  necessarily 
kept  by  the  paymasters  with  whom  he  serves,  makes  the 
tracing  of  a  given  history  at  Washington  an  easy  mat- 
ter, and  it  is  often  possible  to  follow  enlistments  back 
for  years.  The  absence  of  the  discharge  paper  therefore, 
is  not  conclusive  against  a  man,  but  the  absence  of  the 
record  at  Washington,  of  course,  is. 

In  the  case  of  sailors,  where  the  neat  shore  outfit,  with 
no  pocket  in  the  whole,  left  the  man  no  choice  but  to 
carry  his  valuable  paper  in  his  cap,  a  chance  breeze  or  a 
lurch  into  the  gutter  after  a  glass  too  much,  caused  a  loss 
that  it  was  sometimes  difficult  to  make  good. 

ASSUMED    NAME. 

201.  Milford  v.  Uxhidgc,  130  Mass.  107  decides  the 
question  that  a  man  may  gain  a  military  settlement  by 
serving  on  the  quota  of  a  place  under  an  assumed  name. 
Of  course  there  must  be  positive  proof  of  identity. 

NATIONAL    LEGISLATION    UPON    MILITARY    SERVICE. 

202.  In  considering  this  matter  of  honorable  dis- 
charge, it  is  impossible  to  avoid  mentioning  the  ex- 
traordinary legislation  by  which  Congress  sought,  in 
1889,  to  amend  the  records  of  the  war.  It  was  pro- 
posed, by  this  action,  to  reopen  the  muster-rolls,  in  which 
dishonorable  discharges  had  been  recorded,  for  the  ad- 
mission of  evidence  showing  the  error  of  the  original 
record,  and  provision  was  made  in  the  act  for  the  issuing 
of  discharges  based  upon  the  new  finding. 

Perhaps  no  one  would  doubt  that  there  were  cases 
where  the  hurry  and  confusion  of  war  times  opened  the 
door  wide  for  mistake  and  injustice  to  individual  reputa- 
tions, but  the  later  move  to  rehear  those  questions,  with 


IIO  THE     SETTLEMENT     LAW  [Division  Two. 

so  much  vital  evidence  now  forever  lost,  must  have  given 
rise  to  much  error  on  the  other  side.  But  for  better  or 
worse,  the  act  was  passed,  giving  persons  supposed  to  be 
aggrieved  by  the  standing  records,  three  years,  from 
March  1S89,  to  file  evidence  to  disprove  the  justice  of 
the  records,  and  under  the  act,  after  such  proof,  they 
might  be  reversed,  and  an  honorable  discharge  given. 

CASE    CITED. 

203.  It  never  can  be  known  whether  more  wrong  was 
undone  or  committed  by  that  act,  but  one  man  who  came 
out  of  it  with  an  honorable  discharge,  whose  case  was 
afterward  carefully  traced,  seems  to  have  come  to  what 
did  not  belong  to  him.  He  was  sent  north  to  Readville 
wounded.  He  lived  only  eight  miles  away,  and  was 
allowed  to  go  home  on  a  furlough.  He  never  went  back, 
and  when  the  regiment  was  mustered  out,  he  was  prop- 
erly marked  as  a  deserter  or  in  any  event,  as  one  who  left 
the  regiment  otherwise  than  by  honorable  discharge. 
If  a  deputy  sheriff  who  hunted  a  month  for  him  in  1864 
had  lived,  the  man  would  hardly  have  dared  to  make  oath 
in  1890,  that  in  all  the  six  months  of  his  absence  he  was 
at  the  house  of  his  father,  in  the  town  in  which  the 
sheriff  lived,  when  he  went  on  his  furlough.  Now  his 
parents  are  dead,  and  the  soldier  is  the  only  man  found 
who  believes  or  says  he  remained  in  town.  His  father's 
brother  and  many  others  say  he  was  at  home  less  than  a 
month,  suffering  from  his  wound,  and  they  believe  he 
was  out  of  the  State  after  that.  But  he  was  restored  to 
the  status  of  a  good  soldier,  and  holds  an  honorable  dis- 
charge on  the  ground  that  he  was  all  the  time  at  home, 
and  did  not  go  back  to  camp  because  his  wound  was  too 
severe  to  allow  of  his  travelling  that  distance. 


Division  Two]  REVERSING    THE    RECORD  I  1 9 

What  is  the  status  of  this  man  under  our  settlement 
law?  One  who  did  not  look  at  the  date  of  his  discharge, 
under  the  broad  seal  of  the  United  States,  would  say  that 
he  gained  a  settlement  in  the  town  on  whose  quota  he 
served.  *  But  that  date  shows  that  it  was  a  conclusion 
arrived  at,  a  quarter  of  a  century  after  the  man's  imme- 
diate fellows  had  put  on  his  career  the  official  seal  of  dis- 
honor. And  while  he  was  thus  designated,  in  official 
records  according  to  the  language  of  Judge  Devens,  in 
Cambridge  v.  Paxton,  144  Mass.  520  as  "one  to  whom 
the  benefits  of  the  settlement  law  do  not  apply,"  the 
military  settlement  law  was  passed  which  seemed  to 
leave  him  among  those  proven  by  record  to  have  left 
the  service  without  an  honorable  discharge. 

There  is  no  doubt  that  the  statute  of  1889  and  the  ac- 
tion under  it  relieve  the  man  from  the  penalties  of  the 
military  law,  and  place  him  in  the  way  of  receiving  such 
other  benefits  as  it  is  in  the  power  of  the  Pension  Bureau 
to  award,  but  whether  they  reverse  the  record  of  that 
period,  so  that  they  would  be  considered  conclusive  as  to 
the  fact,  or  whether  in  case  of  suit,  the  town  of  alleged 
settlement  would  be  allowed  to  prove  that  the  first  state- 
ment was  right,  is  a  question  of  great  interest,  involving 
perhaps  a  construction  of  the  Federal  Constitution,  and 
its  relations  to  Massachusetts  law. 

204.  Here  follow  several  citations  of  decisions  in 
cases  of  military  settlement,  not  commented  upon  at 
length  in  other  parts  of  this  book,  but  of  which  the  gath- 
ering here  will  be  a  matter  of  convenience. 

Disability  must  terminate  service  within  one  year. 
Way  land  v.    Ware,  104  Mass.  46. 

Credit  on  quota  gives  settlement,  even  if  quota 
more  than  full.       Wayland  v.    Ware,  104  Mass.  46. 


120  THE    SETTLEMENT    LAW  [Division  Two. 

Absence  without  leave  not  desertion.  Hanson  v. 
South  Scitiiate,   115  Mass.  336. 

Military  Settlement  gained  at  end  of  first  year's 
service,  if  followed  by  honorable  discharge.  New- 
buryportv.   Worthington,  132  Mass.  510. 

205.  It  is  impossible  to  condense  the  subject  matter 
of  this  decision  by  a  majority  of  the  court  only,  into  a 
headline.  The  question  came  on  the  support  of  a  mar- 
ried daughter  of  a  soldier,  who  had  a  legal  settlement  in  N. 
in  1864,  and  then  enlisted  on  the  quota  of  W.  He  served 
till  1866,  and  until  his  discharge  it  could  not  be  known 
whether  he  would  receive  an  honorable  discharge  or  not. 

206.  Before  1866  the  minor  daughter  was  emanci- 
pated by  marriage,  and  Worthington  claimed  that  as  the 
daughter  was  "no  longer  a  child"  when  the  settlement 
was  given  by  the  statute,  her  settlement  was  still  in 
Newburyport.  But,  as  stated  above,  the  court  decided 
that  the  father  changed  at  the  end  of  the  first  year  of  ser- 
vice and  before  her  marriage. 

207.  "Sect.  4.  No  person  who  has  begun  to  acquire 
a  settlement  by  the  laws  in  force  at  and  before  the  time 
when  this  chapter  takes  effect  in  any  of  the  ways  in 
which  any  time  is  prescribed  for  a  residence,  or  for  the 
continuance  or  succession  of  any  other  act,  shall  be  pre- 
vented or  delayed  by  the  provisions  hereof;  but  he  shall 
acquire  a  settlement  by  a  continuance  or  succession  of 
the  same  residence  or  other  act,  in  the  same  time  and 
manner  as  if  the  former  laws  had  continued  in  force." 
By  this  provision  it  will  be  seen  that  one  who  had  begun 
to  acquire  a  settlement,  say  in  1868,  would  complete  it 
in  1878. 


Division  Two.]  OMISSION    OF    ONE    METHOD  121 

OMISSION    OF    ONE    METHOD    OF    GAINING    IN     1 874    LAW. 

208.  The  one  change  in  the  law,  as  passed  in  1874, 
aside  from  the  lessening  of  the  time  and  of  the  number 
of  taxes,  was  the  omission  of  that  provision  found  in 
chapter  69,  clause  5  of  the  General  Statutes,  which  gave 
settlements  by  assessment  of  personal  property  of  the 
value  of  two  hundred  dollars  for  five  years  together,  in 
the  place  where  the  person  taxed  lived,  in  the  same  five 
years,  whether  any  of  the  taxes  so  assessed  were  paid  or 
not  (Westbrook  v.  Gorham,  15  Mass.  160).  It  was  prob- 
ably omitted  because  the  new  mode,  in  all  but  the  small- 
est number  of  cases,  would  always  include  the  other. 
Nevertheless,  although  no  longer  on  the  statute  book, 
that  law  is  still  operative,  at  any  rate  for  persons  dying 
before  1878,  and  one  settlement  has  been  conceded  under 
it  very  recently.  The  man,  an  alien,  was  taxed  for  per- 
sonal property  of  the  value  of  two  hundred  dollars  every 
year  from  i860  to  1865  inclusive,  and  paid  no  part  of 
any  of  the  six  taxes.  He  lived  until  after  1871,  when 
naturalization  ceased  to  be  a  condition  of  settlement,  and 
died  in  1872  with  a  settlement  thus  gained,  which  his 
legitimate  daughter  took  in  1897,  failing  one  by  her  own 
residence,  and  by  her  husband. 

SETTLEMENT    CAN    BE    LOST    ONLY    BY    GAINING    ANOTHER. 

209.  "Sect.  5.  Except  as  is  hereinafter  provided, 
every  legal  settlement  shall  continue  until  it  is  lost  or 
defeated  by  acquiring  a  new  one  within  this  State:  and 
upon  acquiring  such  new  settlement,  all  former  settle- 
ments shall  be  defeated  and  lost." 

210.  The  exception  with  which  the  section  begins  re- 
lates wholly  to  a  time  limit  before  which  investigation  is 
impossible  in  most  of  the  towns,  and  the  practical  pur- 


122  THE    SETTLEMENT    LAW  [Division  Two. 

pose  of  the  section  is,  that  when  a  settlement  is  once 
shown  to  have  existed  in  any  place,  the  claim  thus  estab- 
lished can  be  set  aside  only  by  showing  a  later  claim  in 
another  place,  saving  the  exception  at  the  beginning. 
This  provision  which  has  been  a  part  of  our  law  for  a 
very  long  time,  gives  children  of  persons  who  left  the 
State  early  in  the  century  a  claim  upon  the  rights  that 
the  parents  would  have  had  if  they  had  never  left  the 
State,  when  the  children  come  again  within  the  effect  of 
our  poor  laws,  by  return  to  the  State,  in  a  destitute  con- 
dition. While  these  descendants  remain  away  its  provi- 
sions of  course  do  not  apply,  and  there  is  no  reason  to 
believe  that  a  court  would  uphold  the  legality  of  aid  sent 
by  an  overseer  of  the  poor  of  the  town  of  M.  to  a  person 
living  in  Connecticut,  simply  because  the  applicant  or 
his  ancestors  had  formerly  had  a  legal  settlement  in  M., 
for  the  statute  that  defines  the  duties  of  the  overseer, 
limits  their  exercise  to  "poor  persons  found  in  their 
midst,"  and  the  residents  of  another  State  certainly  do 
not  come  within  that  description.  But  this  limitation 
has  never  been  so  closely  construed  as  to  deny  the  right 
and  duty  of  overseers  to  provide  for  their  own  poor, 
though  temporarily  living  elsewhere. 

CONTINUING  EFFECT  OF  SETTLEMENT  LAW. 

211.  Section  5  is  in  marked  contrast  to  the  somewhat 
inhospitable  provisions  of  the  settlement  laws  of  New 
Hampshire  and  Vermont  relating  to  the  same  subject 
matter,  which  not  only  provide  for  the  permanent  loss  of 
settlement  by  short  absence,  but  make  the  provision  very 
practical  in  its  effect  by  punishing,  by  fine  and  imprison- 
ment, those  who  attempt  to  bring  about  the  return  of  the 
poor  person  to  his  former  home. 


Division  Two.]        CONTINUANCE    OF    SETTLEMENT  I  23 

This  provision  of  our  law  bears  with  very  unequal  and 
constantly  increasing  force  upon  the  older  towns,  for  the 
obvious  reason  that  Cambridge  with  a  corporate  existence 
of  two  and  a  half  centuries,  must  for  many  years  have 
many  more  returning  emigrants  than  Lawrence  which 
has  only  one  fifth  of  that  age.  While  the  provision  is 
eminently  humane,  it  has  offered  such  unequal  advan- 
tages to  the  descendants  of  former  residents,  long  absent 
from  the  State,  when  compared  with  the  provisions  made 
by  other  States,  that  a  statute  enacted  in  1898  will  cut 
off  the  right  for  those  who  remain  away  ten  years,  after 
1898.  It  will  be  noticed  that  under  the  clause  as  now  in 
the  Public  Statutes,  chapter  83,  the  third  and  fourth  gen- 
eration may  return,  after  an  absence  of  three  quarters  of 
a  century  on  the  part  of  its  ancestors  in  the  west,  and 
claim  its  continued  right.  It  was  undoubtedly  such  con- 
siderations as  these  that  led  the  commission  lately  in 
session,  to  recommend  the  modification  of  this  statute 
provision  into  some  harmony  with  that  of  neighboring 
States,  and  caused  the  legislature  to  adopt  the  amend 
ment  in  chapter  425,  section  2,   1898. 

212.  Before  proceeding  to  a  consideration  of  the  sixth 
section  of  the  law  of  settlement,  it  might  seem  more  in 
order  here  to  comment  upon  the  rights  of  settlement  that 
come  by  adoption,  but  for  the  reason  that  this  branch  of 
the  inquiry  can  more  clearly  be  treated  in  connection 
with  the  consideration  of  the  marriage  statute,  the  com- 
ment will  be  found  in  the  later  sections. 

LOSS    OF    SETTLEMENT. 

213.  "Sect.  6.  All  settlements  acquired  by  virtue  of 
any  provision  of  law  in  force  prior  to  the  eleventh  day  of 
February  in  the  year  seventeen  hundred  and  ninety  four, 


124  THE    SETTLEMENT    LAW  [Division  Two. 

are  hereby  defeated  and  lost,  except  when  the  existence 
of  such  settlement  prevented  a  subsequent  acquisition  of 
settlement  in  the  same  place  under  the  provisions  of  the 
fourth,  fifth,  sixth,  eighth,  ninth,  tenth,  eleventh  and 
twelfth  clauses  of  section  i  of  this  chapter,  or  under  cor- 
responding provisions  in  other  statutes  existing  prior  to 
the  passage  hereof :  and,  provided,  that  when  a  settle- 
ment acquired  by  marriage  has  been  thus  defeated,  the 
former  settlement  of  the  wife,  if  not  defeated  by  the  same 
provision,  shall  be  thereby  revived." 

214.  This  very  technical  and  involved  addition  to  the 
body  of  the  settlement  law,  passed  in  187T,  need  not  de- 
tain us  long,  as  its  purpose  and  effect  are  not  difficult  to 
understand,  though  its  language  is,  necessarily  perhaps, 
obscure.  Its  main  purpose  was  to  cut  off  the  necessity 
for  the  investigation  of  claims  existing  before  the  close 
of  the  last  century.  Owing  to  the  very  careless  way  in 
which  the  records  were  kept,  especially  the  evidences  of 
the  payment  of  taxes,  in  the  later  years  of  the  last  cen- 
tury, it  may  well  be  doubted  if  there  were  ten  places  in 
the  State  where  a  settlement  by  the  paying  of  poll-taxes 
before  1800  could  be  proven,  and  to  prevent  the  uncer- 
tainty and  fruitless  labor  that  such  cases  occasioned,  it 
was  thought  wise  to  bar  investigations  before  the  time 
named,  which  was  the  date  of  some  new  provisions. 

EXPLANATION  OF  1 87 1  STATUTE  OF  LOSS. 

215.  What  is  the  nature  of  settlements  that  prevent 
the  acquisition  of  a  later  one,  and  which  are  those  that 
come  within  the  above  exception?  Only  those  where 
there  was  a  continuance  of  the  residence  after  1794,  and 
of  the  acts  after  that  date,  which  would  have  given  a 
settlement,  if  there  had  been  none  before. 


■o.]  DEFEAT    OF    SETTLEMENT  1 25 

If  a  man  had  gained  before  1794,  and  he  or  a  son  con- 
tinued to  live  in  the  same  place,  and  to  do  the  same  acts, 
for  a  sufficient  period,  after  1794,  to  give  him  a  settle- 
ment but  for  the  fact  that  he  already  had  one,  that  case  is 
within  the  exception.  But  if,  remaining  in  the  place 
after  1794,  he  does  not  do  those  acts,  or  going  to  another, 
fails  to  do  them  there,  that  case  comes  within  the  statute 
of  loss.  For  further  exposition  of  the  bearing  of  this 
clause  on  existing  fact,  the  reader  is  referred  to  Belling- 
ham  v.  Hopkinton,  114  Mass.  553,  to  Adams  v.  Ipswich, 
116  Mass.  570  and  also  to  the  statement  and  reasoning 
in  this  treatise,  in  the  consideration  of  clause  2  of  the 
Act  of  1898,  which  changes  the  date  for  the  application 
of  these  provisions,  from  1794  to  i860. 

216.  But  in  reading  Bellingham  v.  Hopkinton  the 
reader  will  readily  see  that  upon  the  facts  as  there  stated, 
the  explanation  of  the  effect  of  the  law  given  above  ar- 
rives at  a  result  different  from  the  opinion  of  the  court 
in  that  case.  The  question  was  whether  a  man  took  his 
father's  settlement,  derived  before  1794,  (with  no  act 
done  after  in  the  same  place  by  which  one  might  have 
been  gained),  or  his  mother's  derived  long  after  1794,  in 
another  place.  The  court  decided  that  the  marriage  de- 
feated the  later  settlement  of  the  wife  and  gave  a  settle- 
ment to  her  by  derivation  of  the  husband  from  his  an- 
cestors before  1794,  and  mentions,  in  its  opinion,  the 
fact  that  nothing  was  done  toward  gaining  a  new  one, 
after  1794.  But  the  explanation  of  the  effect  of  the 
amendment  given  is  that  on  which  the  action  of  officers 
is  always  based. 

THE    1898    AMENDMENTS. 

217.  In  chapter  425  of  the  Acts  of  1898  may  be  found 
the  latest  amendments  to  the  settlement   law,  and    that 


126  THE    SETTLEMENT    LAW  [Division  Two. 

chapter  will  now  be  briefly  reviewed,  in  the  order  of  the 
sections,  for  the  purpose  of  showing  the  bearing  of  each 
amendment  upon  previous  legislation.  The  interior  his- 
tory of  the  origin  and  enactment  of  these  different  sec- 
tions shows  plainly  the  fact  that  they  owe  their  existence 
to  a  different  theory  from  that  which  has  suggested  and 
practically  directed  the  principal  legislation  upon  this 
subject,  in  the  last  thirty  years.  But  in  the  purpose  of 
the  various  provisions,  the  fact  is  even  more  apparent, 
showing  that  while  the  effect  of  recent  legislation,  before 
1898,  had  in  many  cases  been  to  extend  and  increase  the 
privileges  of  the  poor  at  the  expense  of  the  towns,  with  a 
consequent  reduction  of  the  charge  of  caring  for  the  un- 
settled poor,  the  provisions  of  the  1898  law  throw  into 
the  rank  of  unsettled  poor  large  numbers  who  have  here- 
tofore been  settled,  while  they  contain  mandatory  provi- 
sions which  cannot  fail  to  increase  the  expense  of  caring 
for  persons,  who  were  unsettled  before  the  change,  by 
making  temporary  aid  more  continuous.  In  other  words, 
much  of  the  legislation  before  1898  was  prepared  and 
carried  through  by  influences  connected  with  the  care  of 
the  State  unsettled  poor,  while  the  later  enactments  owe 
their  presence  on  the  statute-book  to  the  support  of  the 
agents  of  the  cities  and  towns,  and  show,  in  many  of 
their  provisions,  the  evidences  of  the  conflicting  theories 
and  interests  that  have  always  been  manifest  in  the  busi- 
ness relations  of  the  State  and  the  towns.  While  men 
have  always  loved,  and  do  still  covet,  power  and  exten- 
sion of  authority,  this  difference  shows  each  of  the  con- 
tending bodies  anxious  to  divest  itself  of  authority,  and 
to  devolve  the  control  of  its  wards  upon  another.  It  is 
with  no  theory  of  the  greater  fitness  of  the  other  to  per- 
form the  duty  of  caring  for  these,  that  each  seeks  thus  to 


Division  Two.]  STATE    OR    LOCAL    AID  I  27 

shift  the  burden,  but  the  State  officer  sees  in  such  a  clear 
light,  the  unspeakable  benefit  of  the  condition  of  settle- 
ment, that  he  is  willing  to  bring  all  within  its  happy 
limits,  by  successive  lowering  of  the  conditions,  while 
the  town-officer  would  be  glad  if  all  his  cases  were  State 
charges  or  settled  in  some  other  town. 

STATE    VerSUS    TOWN    AID. 

218.  The  expediency  of  making  all  the  persons  re- 
lieved, at  last  dependent  on  local  aid,  is  a  question  upon 
which  relief  officers  are  not  agreed,  each,  perhaps,  look- 
ing at  the  supposed  consequences  from  the  standpoint  of 
the  interests  of  his  own  municipality,  rather  than  of  the 
State  as  a  whole.  Theoretically  there  seems  to  be  no 
reason  why  the  cities  and  towns  should  pay  an  auditing 
board  for  apportioning  their  own  money  back  to  them, 
and  if  a  law  making  all  municipalities  liable  for  aid  to 
"poor  persons  found  in  their  midst,"  without  reimburse- 
ment, could  be  certainly  followed  by  one  making  an 
equal  reduction  in  the  State  tax,  it  would  seem  that  the 
expense  of  State  visit  and  audit  could  be  saved. 

Without  doubt  a  dozen  manufacturing  cities  are  vitally 
interested  in  maintaining  the  present  condition,  and  if 
their  interest  is  the  interest  of  the  State  as  a  whole  there 
is  no  more  to  be  said. 

But  many  considerations  of  thrift  and  business  account- 
ability protest  against  the  present  plan  however  necessary 
it  may  be.  The  manufacturers  in  these  cities,  hire  large 
numbers  of  foreign  operatives,  knowing  that  with  each 
turn  in  the  balance,  whether  by  sickness  or  strike,  the 
State  stands  ready  to  take  the  burden  off  their  hands, 
thus  securing  their  profit.  The  local  relieving  boards, 
looking  for   reimbursement,    have    no    motive    for    strict 


128  THE    SETTLEMENT    LAW 


[Division  Two. 


economy,  and  no  fear  of  that  inquisition  that  follows 
them  in  the  treatment  of  the  town  poor  and  makes  March 
meeting  a  day  of  judgment.  They  wait  the  word  or 
letter  of  the  State  visitor,  and  allow  a  case  to  run  on  two 
or  three  weeks  more,  because  the  State  is  to  pay.  Per- 
haps a  careful  comparison  of  amounts  would  show  that  a 
late  crisis  in  a  seaboard  manufacturing  city  cost  the  State 
more  money  than  all  the  temporary  aid  in  all  the  farming 
towns  west  of  the  Connecticut  in  the  same  time.  If  so, 
the  question  is  only  a  natural  one :  Why  should  they  be 
called  to  pay  any  part  of  the  bill? 

For  the  benefit  of  the  learner  in  the  details  of  relief  to 
the  unsettled  poor,  a  sketch  is  here  given  of  the  manner 
of  daily  routine  followed  by  the  local  officers  in  all  the 
cities  and  towns. 

The  reader  knows,  probably,  that  the  State  gives  no 
relief,  the  giving  being  the  business  of  the  authorities  of 
the  place  where  the  applicant  lives,  exactly  as  though  he 
were  settled  there,  or  in  some  other  place.  It  is  the  fact 
that  a  person  is  poor  and  "stands  in  need  of  relief  "  that 
entitles  him  to  help,  and  the  man  who  landed  a  year  ago 
is  just  as  truly  within  the  care  of  the  overseer  of  the 
place  in  which  he  lives,  as  he  who  can  trace  his  ancestry 
back  to  Plymouth  Rock. 

When  the  aid  is  given,  the  city  or  town  giving  looks 
to  the  State  for  reimbursement,  and  it  is  in  following 
the  somewhat  complicated  provisions  in  the  statutes 
printed  herewith,  so  as  to  secure  the  largest  amount  of 
reimbursement,  that  the  efficiency  of  the  town  agent  is 
seen.  The  following  lines  will  give  a  general  idea  of 
the  scope  of  these  statutes,  and  of  their  practical 
operation. 

The    State   poor  are   divided   into    three    classes:    (i) 


Division  Two.]  AID    TO    STATE    CHARGES  I  29 

those  too  sick  to  be  sent  to  a  State  Almshouse;  (2) 
those  who  need  temporary  aid  to  tide  over  emergencies, 
or  whose  friends  can  only  partially  support,  and  (3)  men 
whose  wives  and  children  are  settled  in  the  town  of 
residence  or  in  some  other  town,  the  men  remaining 
unsettled.  The  first  class, —  the  sick,  admits  of  a  sub- 
division, of  those  who  are  sick  with  contagious  diseases, 
who  cannot  be  moved  at  all  while  thus  sick. 

For  each  of  these  three  classes  of  poor  there  are  dif- 
ferent rules  and  terms  of  reimbursement.  The  sick  can 
be  so  aided  only  while  too  sick  to  be  moved,  at  no  fixed 
rate  per  week,  and  aid  given  can  be  reimbursed  from  a 
date  five  days  before  notice  to  the  State. 

The  second  class,  formerly  called  the  State  Temporary 
Aid  cases,  have  no  time  limit,  can  be  aided  to  no  larger 
amount  than  two  dollars  a  week  in  the  summer  six 
months,  and  three  dollars  a  week  in  the  winter  six 
months,  and  aid  cannot  be  given  and  collected  before 
notice  to  the  State.  These  until  1898  could  be  aided 
only  for  four  or  eight  weeks  at  a  time.  In  the  wife  set- 
tlement case,  so  called,  there  is  no  time  limit,  though  in 
this  as  in  the  other  two,  the  suggestions  of  the  State 
Visitors  as  to  continuance  are  always  considered  by  the 
relief  officer,  and  generally  adopted.  The  notice  and 
bill  for  the  total  amount  given  in  the  wife  settlement 
cases  are  sent  by  the  relieving  town  to  the  town  of  settle- 
ment of  the  wife,  if  the  case  is  aided  in  some  town  other 
than  that  of  her  settlement,  and  by  that  town  to  the  State 
which  audits  it  for  the  man's  share.  Towns  may  aid 
wife  settlement  cases  two  months  before  notice  to  the 
State.  The  notice  sent  in  all  these  cases  is  to  give  resi- 
dences and  other  particulars,  so  that  they  can  be  found 
and  visited,  which   is  always  done  without  unnecessary 


I3O  THE    SETTLEMENT    LAW  [Division  Two. 

delay.  But  the  Board  of  State  Charities  is  not  only, 
what  its  name  might  imply  to  an  inquirer,  a  guardian 
of  the  interests  of  the  unsettled  poor,  but  a  very  steady 
influence  in  the  care  of  the  settled  poor  throughout  the 
State. 

At  first,  under  the  name  of  Alien  Commissioners,  it 
took  charge  of  the  inspection  of  the  enormous  immigra- 
tion of  the  middle  of  this  century,  and  stood  between  the 
influences,  in  foreign  countries,  that  would  have  flooded 
the  State  with  born  paupers,  and  the  interests  of  the 
people  of  the  State. 

One  by  one,  various  duties  connected  with  the  settled 
poor  have  been  placed  in  its  hands,  such  as  care  of  the 
insane  in  hospitals,  the  visiting  of  children  boarded  out, 
and  the  periodical  inspection  of  the  town  almshouses,  so 
that  now  "supervisor  of  municipal  charities"  would  not 
be  an  improper  addition  to  its  title.  Its  visitors,  trained 
experts  in  settlement  law,  carry  into  all  the  towns  of  the 
State  their  knowledge,  and  give  much  assistance  to  new 
or  rusty  officials  in  business  relations  with  the  larger 
places.  They  would  not  be  as  efficient  as  they  are  if 
they  did  not  keep  the  town-agents  active  in  considering 
their  widely  inclusive  interpretations  of  settlement  pro- 
visions. 

Upon  the  question  of  State  or  town  supervision  of  the 
poor  it  would  seem  not  to  be  too  deep  a  problem  in  polit- 
ical economy  to  get  comprehended  at  last:  —  that  the 
State  has  no  money  only  what  is  raised  by  an  annual  tax 
from  the  cities  and  towns,  that  of  the  sum  so  raised,  for 
the  State  poor,  a  considerable  part  is  consumed  in  the 
expenses  of  visitation  and  of  audit,  in  order  to  determine 
in  what  proportion  re-imbursement  shall  be  made,  and 
that  unless  a  town  is  quite  sure  that  it  receives  more,  in 


Division  Two.i  THE    1898    AMENDMENTS  1 3 1 

the  form  of  re-imbursement,  than  it  pays  out  in  the  form 
of  State-tax,  it  is  a  loser  by  the  communistic  arrange- 
ment. 

So  much  of  introduction  seems  necessary  in  consider- 
ing the  scope  and  drift  of  the  new  legislation,  because 
the  present  tendency  of  town -officers  is  in  the  direction 
of  devolving  larger  numbers  and  new  classes  on  the 
State,  so  far  as  pecuniary  liability  goes. 

TAXES   MUST   BE   PAID    IN   THE   FIVE   YEARS    OF   ASSESSMENT. 

219.  The  purpose  and  effect  of  the  amendment  in  the 
first  clause  is  to  prevent  the  payment  of  taxes  after  the 
time  has  gone  by  in  which  they  were  assessed.  It  pro- 
vides that  they  must  be  paid  within  the  five  years,  but 
there  is  no  provision  in  it  to  prevent  the  payment  of  all 
or  any  of  the  five  in  the  last  day  of  the  five  years,  if  they 
then  remain  open  for  payment. 

The  effect  of  the  second  section  is  to  annul  the  settle- 
ments of  those  persons,  who,  having  a  settlement  before 
May  i860,  have  not  since  gained  a  new  one  in  the  same 
place.*  It  is  an  extension  of  the  principle  involved  in 
section  6,  chapter  83,  of  the  Public  Statutes  which  cut 
off  all  settlements  gained  before  1794,  but  unlike  that, 
does  not  state  under  what  provisions  or  sections  of  the 
statutes  the  later  settlements  must  have  been  gained  to 
bring  them  within  the  exceptions,  and  thus  raises  the 
question  whether  the  provisions  of  the  Act  of  1874  will 
apply  to  give  a  settlement  between    i860  and    1874,  or 

*  The  accurate  user  of  phrases  will  object  that  in  the  use  of  the  phrase  "  gained  an- 
other" the  writer  states  an  absurdity.  When  a  man  once  has  certain  things  nothing  can  add 
to  the  fact  of  having.  If  he  has  gained  a  settlement  by  paying  three  poll-taxes  in  five  years, 
he  will  have  no  more  of  a  settlement  if  in  each  of  the  five  succeeding  years  he  paid  a  tax  on 
a  million  dollars'  worth  of  property.  So  this  easily  comprehended  equivalent  means,  sim- 
ply, "  has  done  the  things  that  would  have  given  him  a  settlement,  were  he  not  already  in 
possession  of  one." 


I32  THE    SETTLEMENT    LAW  [Division  Two. 

whether  it  is  only  under  chapter  69  of  the  General  Stat- 
utes that  it  can  be  gained. 

QUESTION    AS    TO    EFFECT    OF    AMENDMENT. 

220.  The  advocates  of  the  first  contention  claim  that  it 
is  the  existence  of  a  previous  settlement  that  prevents  the 
acquisition  of  one  by  five  years  and  three  taxes  from  i860 
to  1865,  while  the  other  side  contend  that  the  terms  of 
the  1874  law,  unmodified  in  that  respect  by  this,  provide 
that  no  settled  person  shall  thus  gain  by  five  years  and 
three  taxes,  until  after  1874.  The  question  waits  judi- 
cial interpretation,  unless  an  amendment  of  two  lines 
shall  settle  it.  On  this  see  opinion  of  the  Attorney 
General   in  appendix. 

221.  Section  3  provides  that  hereafter  a  mother  shall 
be  pauperized  by  aid  to  a  child  (she  not  receiving  aid) 
as  the  father  was  under  former  statutes,  but  shall  not  be 
liable  to  imprisonment  as  he  was  and  is. 

222.  Section  4  provides  that  evidence  of  ability  of 
kindred  to  support  a  poor  person  may  be  heard  by  one 
judge  of  the  Superior  Court,  and  that  claim  for  reim- 
bursement of  such  support  may  go  back  two  years,  as 
claims  between  towns  now  do.  Section  5  repeals  the 
temporary  aid  law  of  1877,  and  substitutes  for  it  an  aid 
law  for  unsettled  persons,  without  time  limit,  but  with 
limit  of  the  weekly  amount  of  total  aid,  at  the  same 
time  placing  upon  the  Board  of  State  Charities  the  duty 
of  removing  to  State  Institutions  the  persons  whose  aid 
shall  be  stopped  at  home.  Section  6  somewhat  enlarges 
the  list  of  institutions  who  may  be  compelled  to  give  to 
Overseers  of  the  Poor  evidence  of  the  deposit  of  money 
with  them,  by  persons  or  relatives  of  persons  who  are  or 
may  be  in  the  receipt  of  public  aid. 


Division  Three.]         CHAPTER    84    PUBLIC    STATUTES  I33 


APPLICATION    OF    CLAUSES    OF    CHAPTER    84. 

223.  Having  considered  the  principal  methods  by 
which  settlements  are  gained,  and  the  recent  decisions  of 
the  courts  which  define  the  application  of  the  conditions 
therein  stated,  it  will  now  be  useful  to  direct  the  atten- 
tion, for  a  short  time,  to  some  of  the  rules  of  proceeding 
set  forth  in  chapter  84  of  the  Public  Statutes.  These 
provisions  are  of  the  greatest  importance,  for  by  them  we 
learn  the  methods  by  which  the  provisions  of  the  settle- 
ment law  become  operative  between  the  towns,  and  the 
limits  of  the  powers  and  liabilities  of  each,  when  inter- 
ests conflict.  As  will  appear  from  a  careful  considera- 
tion of  each,  these  statutes  are  the  result  of  an  attempt  to 
reach  an  equitable  medium  between  contending  interests, 
and  to  the  student  who  reads  them  for  the  first  time  it 
will  often  appear  that  the  rule  bears  hardly  upon  one 
party,  to  the  advantage  of  the  other.  For  the  purpose  of 
illustration  of  business  methods  and  tactics  in  this  field, 
three  or  four  instances  are  now  given  for  the  benefit  of 
any  reader  who  in  the  future  may  care  to  know  what  the 
work  was,  and  how  it  was  done.  Though  the  different 
narratives  have  little  technical  value,  as  illustrations  of 
settlement  law,  they  will  not  be  found  uninteresting, 
especially  to  students  of  the  Yankee  character,  in  its 
business  developments.  But  the  overworked  man  of 
business  may  safely  omit  all  from  page  135  to  page  147. 

THE    RULES    ARE    EQUITABLE. 

224.  If  it  had  been  the  fact  that  he  who  was  hurt  by 
the  provision  in  question  was  always  to  be  in  the  same 
relation,  and  he  who  gained  was  always  to  have  the  same 
advantage,  it  is  inconceivable  that  some  of  the  provisions 
in   chapter  84  ever  could  have  been  enacted,  so  inequi- 


134  THE    SETTLEMENT    LAW  [Division  Three. 

table  do  they  seem.  But  it  was  clearly  in  the  thought  of 
the  legislator  that  the  plaintiff  of  today  would  be  the  de- 
fendant of  tomorrow,  and  so  that  the  seeming  leaning  to 
one  side  was  really  only  the  readjustment  that  kept  the 
centre  of  equity  more  surely  within  the  base.  In  con- 
sidering the  terms  of  any  statute  we  must  not  forget  that 
all  practical  law  is  a  compromise  which  strikes  its  line 
between  ideal  justice  and  the  wrong  it  aims  to  remedy. 
To  seek  the  attainment  of  absolute  equity  is  to  go  upon  a 
fruitless  errand,  and  the  legislator  is  too  often  obliged  to 
content  himself  with  the  form  of  modified  good  which 
Portia  commends  to  the  Duke,  and  to  accomplish  a  great 
good  by  doing  a  little  wrong.  Besides,  any  view  of  the 
law,  as  an  agent  of  equity,  which  does  not  also  compre- 
hend the  natures  and  conditions  of  the  men  who  are 
affected  by  it  and  who  are  to  administer  it,  must  be 
faulty  and  one-sided.  It  is  in  this  view  and  with  this 
knowledge  that  the  provisions  of  the  law  we  are  now 
considering  find  their  justification  and  indeed  the  neces- 
sity for  their  existence. 

If  later  conditions  have  improved  the  relations  of  the 
towns  to  each  other,  so  that  former  restrictions  are  less 
necessary  now,  we  shall  see  the  effect  sooner  or  later,  in 
modifications  of  the  statute.  Meantime  we  must  remem- 
ber that  these  provisions  are  the  outcome  of  a  condition 
which  has  now  passed  away  forever. 

THE    SUPPORT    OF    THE    POOR    ALWAYS    A    HEAVY    BURDEN. 

225.  The  burden  of  public  expenditure,  borne  wholly 
by  the  annual  tax-levy,  was  always  so  heavy  that  the 
towns  sought  in  all  available  ways  to  lessen  it.  In  many 
of  them  the  support  of  the  poor  was  publicly  sold  to  the 
lowest  bidder  and  when   competition   was  sharp,  we  may 


Division  Three.]       FORMER    RELATIONS    OF    TOWNS  1 35 

believe  that  official  scrutiny  was  not  too  vigilant,  later  on, 
to  see  that  the  successful  bidder  did  as  well  by  his 
charges  as  another  would  have  done.  Thus  while  a 
rigid,  hard-fisted  economy  was  practised  toward  the  resi- 
dent, settled  poor,  and  those  having  no  settlement  were 
so  often  carried  out  of  town  limits  and  dropped,  that  a 
statute  to  prevent  that  abuse  became  necessary,  it  was  in 
dealings  with  other  municipalities,  in  the  preliminary  ar- 
rangement of  settlement  responsibilities,  that  the  highest 
usefulness  of  the  warlike  overseer  of  the  poor  became  ap- 
parent. For  it  does  not  exaggerate  the  truth  to  say  that 
in  the  first  half  of  this  century  the  towns  were  at  war 
with  each  other  on  this  matter  of  the  responsibility  for 
the  aid  of  the  poor.  Investigations  were  conducted  and 
plans  were  laid  with  all  the  secrecy  that  is  connected 
with  military  campaigns,  and  to  heighten  the  resemblance 
to  the  exigencies  of  a  soldier's  life,  men  of  sober,  honor- 
able Christian  character,  continually  did,  for  their  towns, 
services  dishonorable  and  mean,  and  such  as  they  would 
have  been  ashamed  to  do  for  private  ends.  A  compara- 
tively small  knowledge  of  the  details  of  individual  cases 
suggests  the  following  examples  of  what  was  then  con- 
stantly occurring  all  over  the  State. 

226.  A  woman  left  her  husband  in  a  place  where  both 
were  known,  by  the  fact  of  aid,  to  the  overseer  of  the 
poor,  and  went  to  a  place  fifteen  miles  away,  having  first 
gone  through  with  an  invalid  form  of  marriage,  with  a 
man  settled  in  another  place.  Neither  she  nor  her  new 
husband  had  any  claim  on  the  place  where  they  lived,  and 
when  they  fell  into  distress,  the  place  of  his  settlement 
was  notified,  and  hers,  by  her  deception,  was  assumed  to 
be  his.  When,  after  four  years  of  aid,  the  fraud  was 
discovered,    the   overseer  of  the    place  from  which    she 


I36  THE    SETTLEMENT    LAW  [Division  Three. 

came  said,  "I  knew  you  were  aiding,  all  the  time,  and 
that  she  and  the  illegitimate  children  that  she  was  bear- 
ing belong  to  us. " 

And  yet  though  his  relations  were  most  friendly  with 
the  defrauded  place  and  he  met  its  officials  often,  he 
could  not  see  that  it  was  his  duty  to  do  as  he  would  be 
done  by. 

227.  In  another  case  a  woman,  a  hereditary  pauper  for 
two  generations,  was  lying  in  an  almshouse  waiting  her 
time.  The  chairman  of  the  overseers  of  the  poor  who 
fortunately  for  such  purposes  was  a  justice  of  the  peace, 
sent  to  .a  neighboring  town  and  caused  to  be  brought 
before  him  one  of  the  persons  who  had  shared  the  favors 
of  the  patient  in  past  years,  and  who,  moreover,  had  the 
crowning  advantage  of  an  undisputed  settlement  in  a 
neighboring  town.  Though  brought  to  the  almshouse  by 
a  constable,  there  was  no  legal  warrant  in  the  case,  and 
the  constraint  which  the  man  believed  to  exist,  was 
wholly  in  appearance,  or  even  fraudulent.  The  man  was 
at  once  married  to  the  patient  by  the  chairman,  and  was 
then  told  that  he  was  at  liberty  to  go  where  he  would. 
The  same  night  the  woman  bore  twins,  and  the  next  day 
the  town  of  settlement  was  notified,  and  came  and  re- 
moved her  and  the  children  to  their  almshouse.  As  all 
these  facts  relating  to  the  means  by  which  the  burden 
had  been  changed  were  then  as  well-known  as  now,  it  is 
easy  to  believe  that  the  town,  which  hasalways  been 
ready  to  defend  its  rights  in  the  courts,  would  cheerfully 
have  spent  five  hundred  dollars  to  establish  any  possible 
defence,  rather  than  take  a  case  in  such  a  manner.  One 
of  these  twins  then  born  was  the  subject  of  a  suit  in  the 
last  decade,  and  though  the  detail  will  lead  us  for  a 
minute  away  from  the  subject  under  consideration,  it  is 


Division  Three.]  AN    EFFICIENT    OFFICER  137 

worth  relating  if  only  as  illustrating  the  changes  that  a 
generation  witnesses. 

The  town  which  had  taken  the  little  girl  and  her 
mother  to  its  almshouse  was  the  defendant  in  this  later 
suit,  also,  and  showed  that  all  methods  of  proving  a 
settlement  through  the  father  of  the  girl  had  been  lost 
by  a  fire  that  destroyed  all  its  records,  long  after  the 
transactions  related.  Under  these  circumstances,  though 
the  plaintiff  offered  evidence  that  the  town  of  alleged 
settlement,  in  addition  to  the  acts  related  above,  had  paid 
bills  for  the  support  of  the  family  at  other  times,  the 
court  ruled  that  there  was  no  evidence  that  would  warrant 
a  verdict  that  the  father  of  the  girl  ever  was  settled  in 
the  defendant  town.  This  ruling  was  in  the  Superior 
Court,  and  the  case  was  not  carried  up.  If  it  had  been, 
perhaps  some  of  the  justices  remembering  the  inferences 
that  were  allowed  to  supply  the  lack  of  positive  evi- 
dence in  the  Wareham  Frye  case,  might  have  thought 
that  these  acts  of  the  recognized  town  officers,  whose 
business  it  was  to  know,  done  under  such  extraordinary 
provocation,  were  quite  as  clear  evidence  of  settlement 
as  were  the  votes  of  citizens  at  large,  passing  upon  a 
collateral  subject.  Fortunately  for  the  defendants  any 
compromising  vote  of  the  town  was  safely  at  rest  with 
the  tax-records. 

228.  But  to  return  after  a  digression.  An  overseer  of 
the  poor  looking  over  the  tax-list  of  his  town  saw  on  it 
the  name  of  a  man  who  had  moved  from  a  neighboring 
town  more  than  nine  years  before,  and  had  paid  a  tax 
every  year.  If  he  continued  to  live  without  aid  until 
spring  his  settlement  would  change.  He  never  had  been 
aided,  but  perhaps  there  was  some  circumstance  in  his 
character  or  conditions,    that  suggested  to  the  vigilant 


I38  THE     SETTLEMENT     LAW  [Division  Three 

mind  of  the  official  that  it  was  better  that  he  should  not 
gain  a  claim  there.  The  difficulty  was  that  it  was  only 
through  pauper  aid  that  the  claim  could  be  prevented, 
and  the  man  never  had  asked  for  aid.  One  night  he  was 
approached  by  a  friend,  who  had  been  carefully  instructed 
by  the  overseer  what  to  say,  who  told  him  that  men  not 
half  so  hard-working  as  himself  were  going  down  to  the 
town-hall  and  getting  a  barrel  of  flour  for  Thanksgiving 
time,  and  there  was  no  doubt  he  could  do  the  same.  The 
next  evening  brought  him  down  to  the  place,  and  he  was 
very  thankful  for  the  kindness  that  had  singled  him  out, 
and  profuse  in  his  gratitude.  Just  as  he  left  the  room 
some  lingering  suspicion  came  into  his  mind,  and  he 
walked  across  the  floor  to  where  the  guardian  of  the  inter- 
ests of  the  town  sat.  "Look  here,"  said  he,  "taking 
this  will  not  have  anything  to  do  with  my  right  to  vote, 
or  my  being  a  citizen,  will  it?"  "Oh  no,"  answered 
the  other,  "all  that  will  be  just  the  same."  So  he  took 
the  aid,  and  the  settlement,  was  postponed  for  another  ten 
years.  It  was  a  revelation  in  ethics  to  hear  this  good 
old  retired  official  twenty  years  after,  tell  this  story. 
He  had  given  up  the  cares  of  office  to  younger  men,  and 
now  merely  shouldered  his  crutch  and  showed  how  fields 
were  to  be  won  to  those  who  cared  to  listen.  The  wise 
side-long  smile  with  which  he  repeated  the  little  evasion 
which  served  for  a  pontoon  over  the  gulf  of  lies  was 
worth  going  miles  to  see,  and  there  was  in  all  the  re- 
hearsal no  suggestion  of  any  feeling  but  the  conscious- 
ness of  high  duty  well  done. 

229.  A  woman  seventy  years  old,  having  a  settlement 
in  a  place,  was  living  there  with  her  daughter,  a  soldier's 
widow,  who  had  through  her  husband  a  claim  elsewhere. 
The  daughter  had  been  living  in  the  place  three  years, 


Division  Three.]       AID  FOR  THE  PURPOSE  OF  DEFEATING      I  39 

and  at  the  end  of  two  more,  without  aid,  would  also  have 
a  settlement  in  the  same  place  as  the  mother.  She  had 
a  skilled  occupation,  and  earned  as  much  as  twelve  dol- 
lars a  week  for  the  support  of  herself  and  children,  and 
of  her  mother  who  was  entirely  dependent  upon  her. 
The  mother  fell  sick  and  aid  was  asked,  beside  the  at- 
tendance of  a  doctor,  because  the  daughter  was  kept  from 
work,  though  her  credit  was  so  good  that  neither  she  nor 
her  children  were  in  any  need  of  public  relief. 

The  place  of  her  husband's  settlement  was  notified, 
and  the  aid  was  assumed  to  be  for  the  family,  as  well  as 
for  the  mother.  Here  the  purpose  clearly  was,  by  in- 
volving the  family  of  the  daughter  in  the  consequences 
of  aid,  to  postpone  the  time  of  her  change  from  the  hus- 
band's settlement,  (though  the  children  would,  of  course, 
have  continued,)  because  she  must  live  five  years  without 
aid  to  so  change.  Was  this  a  case  in  which  aid  pre- 
vented the  acquisition  of  a  settlement?  There  was  no 
litigation  in  consequence  of  the  incident,  and  so  no 
governing  decision  followed,  and  we  can  go  no  further 
than  to  apply  the  natural  inference  to  the  words  of  the 
statute,  as  interpreted  by  decision.  Were  the  family  of 
the  daughter  "standing  in  need  of  immediate  relief" 
when  the  aid  was  given  ?  If  not,  the  doctrine  of  New 
Bedford  v.  Hingham  before  cited,  strongly  implies  that 
no  result  of  defeat  of  settlement  will  follow  where  the 
aid  is  unnecessarily  given. 

PAUPERIZATION    BY    AID. 

But  the  town  giving  the  aid  answers  that  the  daughter 
and  her  children  joined  in  the  consuming  of  the  supplies 
paid  for  out  of  the  public  treasury,  and  charged  to  the 
town,    and  that  that  fact   settles  the  question.      On  the 


I40  THE     SETTLEMENT    LAW  [Division  Three. 

other  hand,  it  is  proper  to  say  that  they  cannot  thus  beg 
the  question,  for  the  just  settlement  of  it  involves  the 
consideration  that  the  relieving  officer  may  have  used 
the  public  funds  illegally,  or  at  any  rate  have  construed 
the  statute  incorrectly.  It  is  surely  too  broad  a  state- 
ment to  make,  that  all  those  who  eat  the  food  or  are 
warmed  by  the  fire  that  the  public  fund  provides,  are 
pauperized  by  that  fact.  It  may  very  well  be  that  the 
gentlemen  who  made  this  inference  have  themselves 
found  it  convenient,  at  their  annual  session,  to  dine  at 
the  almshouse,  from  provision  as  surely  made  at  the  pub- 
lic charge  as  any  that  they  officially  issued,  but  it  is  in- 
conceivable that  any  such  legal  consequences  should  have 
logically  followed,  or  should  have  seemed  to  them  to 
follow. 

230.  So  in  the  case  of  an  adult  son,  a  pensioner,  liv- 
ing with  his  mother,  who  during  his  absence  in  the  war, 
contracted  a  habit  of  receiving  public  aid  that  clung  to 
her  after  he  came  back  and  resumed  his  trade  of  ma- 
chinist. There  were  only  they  two,  and  his  wages  were 
ample  for  both.  She  belonged,  by  a  later  marriage  in  the 
town  where  they  lived,  he  in  a  neighboring  place.  He 
fell  sick  with  a  temporary  heart-trouble,  and  when  his 
wages  ceased  she  thought  at  once  of  the  poor-relief,  and 
spoke  to  him  about  it.  But  she  had  received  none  since 
he  came  from  the  army,  and  he  dissuaded  her,  telling  her 
that  he  should  soon  be  at  work  again  and  that  meantime 
their  credit  was  ample.  He  thought  he  had  settled  the 
question,  and  so  was  angry  when,  two  hours  later,  she 
came  into  his  room  with  arms  full  of  groceries  drawn 
from  the  overseers  of  the  poor.  "Then  I  scolded  her, 
and  she  cried, "  but  did  not  carry  the  things  back.  So 
he   joined  with  her  in   using  the   supplies   that   neither 


Division  Three.]  WHAT    AID    DEFEATS:  I4I 

needed,  and  ten  years  after,  this  aid,  thus  unnecessarily- 
given,  was  invoked  to  show  that  the  three  taxes  paid  be- 
fore the  aid  and  two  after,  gave  no  settlement  because  of 
it.  On  the  facts  as  stated  above,  the  case  was  denied  by 
the  place  of  military  settlement,  and  the  other  did  not 
feel  sufficient  confidence  in  its  ground  to  take  the  chances 
of  a  suit  to  enforce  its  claim.  There  is  one  extension  or 
application  of  this  principle  of  non-pauperization  by  aid 
that  requires  a  passing  notice  in  this  place,  on  account  of 
its  being  strongly  held  by  some  departments  of  local  re- 
lief agents,  as  well  as  by  some  State  officers.  It  is  this : 
"that  some  conditions  of  support  in  penal  institutions  do 
not  pauperize  the  person  who  suffers  imprisonment,  for 
the  reason  that  aid  to  pauperize  must  come  out  of  the 
pauper  appropriation.  It  is  not  enough  that  the  receiver 
is  supported  by  the  funds  of  the  county  or  of  the  State : 
—  so  long  as  he  is  not  aided,  either  originally  or  by 
notice,  by  the  overseers  of  the  poor,  he  is  not  pauper- 
ized. There  are  grants  made  by  cities  and  towns  for 
public  purposes,  in  the  benefits  of  which  all  citizens 
share,  without  any  taint  of  public  relief,  such  as  hos- 
pitals, libraries,  and  many  others,  and  the  support  of 
these  cases  which  is  distinctly  provided  for  by  statute  in 
other  ways  than  from  the  appropriation  for  the  poor, 
brings  them  to  the  same  effect.  A  man  who  had  lived 
two  years  in  a  place  and  paid  two  taxes,  and  then  served 
two  years  in  State-prison,  would  upon  one  year's  resi- 
dence more,  with  one  more  tax,  in  the  same  place,  have 
a  settlement  there. " 

There  is  a  phrase  in  Judge  Shaw's  opinion,  in  1  Met- 
calf  572,  that  seems  to  support  this  construction  of  effect 
of  aid,  (though  certainly  not  the  contention  that  involun- 
tary absence  will  not  affect  domicil)  in  which,  in  speak- 


142  THE    SETTLEMENT    LAW  [Division  Three. 

ing  of  these  cases  supported  direct  from  the  State  Treas- 
ury, he  says  that  "in  this  respect  he  is  not  regarded  or 
treated  as  a  pauper,"  though  he  is  then  speaking  of  one 
sent  to  a  house  of  correction,  and  not  to  State-prison. 

Bearing  in  mind  that  Judge  Shaw,  in  Charlestozvn  v. 
Groveland,  15  Gray  18,  says  that  "every  person  is  a 
pauper  who  receives  relief  at  the  public  expense,  and 
such  as  is  provided  by  law  for  persons  standing  in  need 
of  immediate  relief, "  and  in  Wood  v.  Burlington,  1840, 
that  one  is  not  less  a  pauper  because  the  relief  is  made 
necessary  by  the  fact  of  confinement,  and  it  becomes 
quite  probable  that  the  phrase  from  the  opinion  in  1  Met- 
calf  will  not  bear  so  liberal  an  interpretation  as  would 
seem  to  be  necessary  in  order  to  bring  his  authority  to 
the  support  of  the  reading  given.  But  the  interpretation 
is  believed  to  rest  rather  upon  the  statute  than  on  the 
opinion. 

AID    TO    DEFEAT    A    SETTLEMENT. 

231.  A  native  of  Massachusetts,  seventy  years  old, 
temperate  and  respectable,  received  aid  in  the  place 
where  he  had  lived  for  several  years  without  paying 
taxes.  When  the  town  of  his  origin  was  notified,  it 
made  no  objection  to  paying  for  him,  and  he  was  aided 
on  its  account  for  a  year  or  more.  Again,  after  an  in- 
terval of  six  years,  he  fell  into  distress,  in  the  place 
where  aided  before,  and  then  it  was  found  that  either  he, 
or  some  interested  friend  had  paid  taxes  enough,  so  that 
the  settlement  was  changed  to  the  town  of  residence. 
At  this  time  aid  was  necessary  for  only  a  few  months 
and  then  the  case  disappeared  from  the  knowledge  of  the 
relieving  office,  and  so  continued  for  four  years  later, 
when  a  notice  from  the  town  of  original  settlement 
again  called  it  up.      Both  the  man  and  wife  were  then 


Division  Three]  DEFEATING    BY    AID  I43 

nearly  eighty  years  old,  and  the  request  for  two  dollars  a 
week  in  cash  did  not  seem  unreasonable.  As  the  case 
was  nearly  a  hundred  miles  from  the  place  notified,  it 
happened  that  it  was  not  visited,  but  was  assumed  on  the 
basis  of  the  excellent  record  at  the  time  of  former  aid. 
Thus  it  came  about  that  it  was  nearly  two  years  before  it 
was  seen,  during  which  time  the  aid  was  at  intervals  con- 
tinued. It  chanced  that  a  case  occurred  near  this  at  the 
end  of  that  time,  and  that  fact  caused  a  visit  to  the  old 
man.  He  lived  far  away  from  the  railroad,  and  in  a 
place  where  each  person  knows  all  that  any  one  needs  to 
know  of  all  the  other  inhabitants. 

To  the  visitor  accustomed  to  the  close-mouthed  reti- 
cence with  which  his  inquiries  in  the  city  are  met,  often 
by  those  too  conscious  of  the  fragility  of  their  own  glass 
houses,  there  is  a  delightful  contrast  in  the  breezy  free- 
dom with  which  details  come  to  him  in  rural  districts. 
If  only  he  will  pledge  himself  not  to  give  the  name  of 
his  informant,  his  knowledge  of  details  will  presently  be 
bounded  only  by  his  sense  of  propriety  and  decency  in 
questioning.  But  it  is  only  as  a  trade,  or  more  vulgarly 
a  swap,  that  these  things  easily  come,  and  the  visitor 
must  here  also  make  himself  at  home.  He  need  not  tell 
anything  improper  to  be  told  of  his  business,  but  if  he  is 
not  interested  in  the  horse  of  the  man  who  drives  him 
across  the  country,  or  in  the  daily  life  of  the  driver,  he 
will  not  travel  an  easy  road,  nor  reach  a  satisfactory  rest. 

In  this  case  the  man  to  be  found  was  well  known  to 
the  driver,  and  when  the  visitor  made  known  his  usual 
occupation,  the  question  at  once  followed  whether  the  ap- 
plicant was  to  be  seen  because  of  some  information  he 
could  give.  "No,  because  he  was  aided."  "He  never 
got  no  aid."     "Well,  you  must  know  the  business  of  the 


144  THE    SETTLEMENT    LAW  [Division  Three. 

overseers  better  than  they  do.  I  saw  one  of  them  an 
hour  ago,  and  he  told  me  he  was  aided."  "Wall,  I 
swan,  I  don't  know  what  to  make  of  that.  Why,  you 
know  he  lives  on  his  own  place,  wuth  five  thousand  dol- 
lars, and  has  got  money  in  the  bank  tew."  "Well,  you 
must  be  talking  about  a  different  man  of  the  same 
name."      "No,    mine  is  the  old   man  who   lived   up  to 

till  four  year   ago.      You  knew  about   his   brother 

sendin'  for  him  and  makin'  over  his  property  to  him, 
didn't  you?"  Divested  of  the  driver's  expletives  and 
connectives  and  elisions,  and  charges  to  secrecy,  the 
story  ran  that  four  years  before,  the  well-to-do  younger 
brother  had  separated  from  his  wife,  and  had  paid  her  a 
sum  of  money  to  extinguish  her  right  of  succession  in  the 
estate.  Then  he  had  sent  for  this  brother,  and  on  his 
arrival  had  made  over  to  him,  by  recorded  deeds,  his  real 
and  personal  property,  on  the  condition  that  he  and  his 
wife  should  care  for  him  through  his  remaining  years. 
Both  had  lived  on  the  place  until  the  spring  before  the 
visit,  when  the  brother  died.  So  much  the  driver  knew 
and  the  old  man,  who  was  at  home,  told  the  rest.  He 
had  used  the  bank-book,  the  figures  in  which  he  was  not 
willing  to  tell,  up  to  the  death  of  his  brother,  and  there 
was  still  some  amount  on  deposit.  There  was  no  mort- 
gage on  the  farm.  In  answer  to  the  question  as  to 
whether  he  was  still  receiving  aid,  he  said  he  had  volun- 
tarily taken  himself  off  in  February,  when  the  brother 
died.  Asked  why  he  applied  for  aid  under  the  circum- 
stances, he  answered  with  apparent  truthfulness  that  he 
never  did.  Then  with  a  profession  of  long-standing 
wish  to  have  a  chance  to  make  the  explanation  that  he 
was  now  to  make,  he  went  on  to  say  that  soon  after  he 
took  charge  of  his  brother,  the  overseer  who  lived  near 


Division  Three.]  OFFICIAL    ALTRUISM  1 45 

him  came  to  him  and  asked  him  what  would  become  of 
the  brother  if  both  lived  so  long  as  to  consume  all  the 
interest  in  the  place.  Then  the  altruistic  official  asked 
him  if  he  thought  it  quite  right  to  come  down  in  his  old 
age,  and  eat  his  brother  out  of  house  and  home?  And  in 
answer  to  a  disclaimer  and  a  question  as  to  what  could 
be  done,  came  out  the  stratagem  of  the  official,  which  is 
readily  seen  when  it  is  remembered  that  the  man  was 
now  living  on  the  property  on  such  a  tenure  that  at  the 
end  of  three  years  he  would  again  be  the  proper  charge  of 
that  town,  if  meantime  he  were  not  aided.  He  told  him 
that  he  ought  to  apply  to  the  place  from  which  he  came, 
for  aid,  and  when  asked  if  that  place  would  be  willing  to 
aid,  said  there  was  no  doubt  of  it.  The  notice  of  aid 
given  contained  no  hint  of  the  facts,  and  they  were  re- 
vealed only  by  the  visit. 

Here,  also,  there  was  no  adjudication  that  the  case  did 
not  come  within  the  spirit  of  the  statute,  but  it  is  not  a 
matter  of  doubt  that  if  it  were  again  to  arise  after  the  ex- 
piration of  three  years  including  some  part  of  this  time, 
the  question  would  be  mooted.  In  this  particular  case 
the  issue  was  complicated  by  the  fact  that  there  had  been 
no  legal  denial,  and  so  the  place  of  settlement  was  tech- 
nically held.  But  apparently  not,  if  the  ruling  in  New 
Bedford  v.  Hingham  was  applied,  for  in  that,  the  fact  of 
the  family  not  being  "in  need  of  immediate  relief" 
was  ruled  to  obviate  the  necessity  of  a  legal  denial. 

TRACING    A    SETTLEMENT    UNDER    DIFFICULTIES. 

232.  With  the  detail  of  one  other  case,  not  falling 
properly  under  any  one  section  of  the  law  of  settlement, 
but  illustrating  in  itself  something  of  the  intricacy  which 
is  the  characteristic  of  many  of  these  cases,  and  to  some 


I46  THE    SETTLEMENT    LAW  [Division  Three. 

investigators  including  the  present  narrator,  their  prin- 
cipal attraction,  involving  also  a  little  of  the  diplomatic 
finesse  of  the  trained  official  with  more  than  its  proper 
share  of  the  romance  of  human  life,  this  branch  of  our 
considerations  will  end,  and  though  there  may  be  little 
instruction  in  the  details  given,  in  which  the  actual 
facts,  known  to  many  living  men,  are  rigidly  followed; 
it  is  believed  that  they  will  not  prove  to  be  lacking  in 
interest  to  that  large  class  among  whom  nothing  that  con- 
cerns the  daily  life  of  those  who  surround  us  is  common 
or  unclean. 

Forty-three  years  ago  a  woman  of  American  parentage, 
inheriting  from  her  ancestors  a  full  share  of  those  traits 
that  in  adult  life  bloom  out,  in  the  least  emergency,  in 
pauperism,  married  in  Lynn  a  sailor  of  English  descent. 
They  lived  together  in  Boston  until  she  had  three  chil- 
dren, and  then  he  left  her,  marrying  two  other  women 
between  i860  and  1866.  The  wife  went  to  her  home  in 
the  country,  and  there  lived  with  her  children  till  about 
1865  when  she  went  to  a  place  near,  where  there  was  liv- 
ing a  bachelor,  also  purely  American,  having  a  settle- 
ment in  the  place  where  he  lived.  With  that  utter  lack 
of  inquiry  which  is  so  charming  and  so  constant  an  ac- 
companiment of  marriage  contracts,  he  married  her,  and 
continued  to  live  in  the  place  of  his  settlement.  Here 
she  bore  him,  in  rapid  succession,  four  or  five  children, 
illegitimate  of  course,  and  as  she  had  gained  no  settlement 
by  her  English  sailor,  the  charge  went  back  to  the  town 
of  her  father's  settlement,  which  for  ten  years,  supported 
not  only  her  and  her  growing  family,  but  also  without 
legal  necessity,  the  father  of  her  later  brood  of  children, 
he  having  grown  to  be  as  shiftless  as  herself.  The  asso- 
ciation could  have  been  broken  up  at  any  time  by  remov- 


Division  Three.]  AN     INVOLVED    CASE  147 

ing  her  and  the  children  to  the  town  of  her  settlement, 
but  the  case  drifted  and  grew  worse  year  by  year. 

It  was  not  until  a  daughter  by  her  valid  marriage, 
having  become  sixteen  years  old,  showed  unmistakably 
her  legitimate  descent  from  the  old  stock  by  bearing  an 
illegitimate  child,  in  another  town,  that  the  authorities 
of  the  place  of  settlement  fairly  awoke  to  a  knowledge  of 
the  burden  that  was  upon  their  hands.  Then  they  em- 
ployed an  agent  to  do  what  it  was  impossible,  by  lack  of 
time  or  capacity,  for  any  of  them  to  do,  namely,  to  see  if 
there  was  no  way  out  of  the  trouble.  It  was  now  more 
than  fifteen  years  since  her  husband  had  been  heard  from, 
and  more  than  seven  since  she  had  gone  through  the  mar- 
riage with  the  father  of  the  second  brood  of  children. 

Bearing  in  mind  that  when  a  marriage  ceremony  is 
shown,  those  who  contest  its  validity  will  have  the  burden 
of  proof,  to  show  why  it  is  not  valid,  the  town  of  the 
woman's  settlement  denied  that  the  settlement  was  now 
with  them,  alleging  a  change  by  a  marriage  proven  with 
a  man  having  a  settlement  in  the  town  notifying.  To  the 
claim  that  the  marriage  was  invalid  by  reason  of  her  for- 
mer marriage,  the  answer  was  given  that  there  was  no 
evidence  that  her  first  husband  was  living  when  the  sec- 
ond marriage  was  contracted,  and  that  if  he  was  not, 
there  was  nothing  to  prevent  her  and  the  children  of  the 
second  marriage  from  taking  the  settlement  of  the  second 
husband.  The  effect  of  this  move  of  course  was  to  put 
on  the  claimant  town  the  burden  of  proving  a  wandering 
man  to  be  alive  many  years  after  any  of  the  parties  inter- 
ested had  last  heard  any  tidings  of  him.  The  denying 
town,  in  making  this  move,  believed  that  it  would  be 
impossible  to  find  him,  and  felt  sure  that  the  long-con- 
tinued claim  through  the  woman's  ancestors  was  at  last 


I48  THE    SETTLEMENT    LAW  [Division  Three. 

ended  by  the  mere  lack  of  possible  evidence  which  would 
invalidate  the  second  marriage.  Technically,  in  the 
light  of  the  later  case  of  Hyde  Park  v.  Canton,  the 
defence  was  weak,  in  the  fact  that  they  could  not  have 
shown  any  evidence  that  the  husband  had  not,  in  later 
years,  come  back  to  the  place  where  he  left  her. 

But  the  resources  of  the  veteran  official  who  long  gave 
the  law  and  the  practice  to  northern  Middlesex  were  not 
so  few  as  his  opponents  believed,  and  it  was  not  many 
weeks  before  he  came  to  them  with  the  story  that  the 
long-lost  husband  was  where  he  could  be  produced  at  any 
time,  when  needed  to  invalidate  the  effect  of  the  second 
marriage.  Hereupon  arose  many  interesting  and  vital 
questions.  Was  he  the  real  man  or  only  one  who  might 
pass  for  him?  It  was  now  more  than  twenty  years  since 
the  wife  had  seen  him,  and  in  that  time  the  war  had  oc- 
curred, with  all  the  chances  of  a  sailor  having  served  on 
some  quota  for  a  year,  that  would  give  a  claim  not  only 
to  the  new  brood  of  children,  but  also  to  the  wife  and 
the  children  of  her  valid  marriage.  And  if  he  had 
served  on  no  quota,  there  was  still  the  chance  that  in  the 
many  years  of  absence,  he  might  have  acquired  a  civil 
settlement  that  would  practically  relieve  the  town  of  the 
wife's  settlement  from  further  charge. 

But  this  wary  and  high-tempered  old  gentleman  had 
not  been  sent  on  this  long  and  difficult  search  for  the 
benefit  of  the  town  which  had  just  escaped  from  his 
tyranny  by  a  sharp  construction  of  the  marriage-law,  and 
to  all  inquiries  as  to  the  history  or  present  residence  of 
the  man,  his  only  answer  was:  "That  don't  make  no 
difference.  I  have  found  him  and  I  am  going  to  put  her 
on  to  ye,  and  so  that  she  will  stay  tew. "  This  with  a 
closure  of  the  jaw  and  a  lowering  of  the  eyebrow  such  as 


Division  Three.]  AN     INVOLVED     CASE  149 

might  have  been  seen  on  his  father's  face  a  hundred  years 
before  when  he  was  lunging  a  bayonet  thrust  at  a  Brit- 
isher on  Concord  road,  closed  the  case  so  far  as  a  volun- 
tary disclosure  by  himself  went.  So  he  was  told  that 
the  town  did  not  care  to  spend  money,  to  fight  a  lost 
case,  and  that  if  he  would  satisfy  the  authorities  that  he 
had  found  the  real  man,  and  that  he  had  gained  no  new 
settlement,  there  would  be  no  further  contest,  but  that  if 
he  would  not  accede  to  these  terms,  he  would  be  obliged 
to  produce  the  man  in  court,  inasmuch  as  the  case  never 
would  be  taken  upon  his  statement  alone.  As  he  had 
seen  the  man  only  after  a  promise  that  no  tracing  of  him 
should  result  from  his  now  coming  forward  for  a  purpose, 
the  terms  proposed  left  him  in  a  hard  strait.  In  vain  he 
assured  the  agents  of  the  other  town  that  the  man  had 
never  been  in  the  service  during  the  war,  and  never  had 
lived  a  day  in  Massachusetts  in  the  last  twenty  years; 
they  insisted  that  they  must  know  that  such  a  man  was 
now  living,  or  they  would  fight. 

So  the  official  went  back  to  his  thoroughly  frightened 
fugitive,  and  after  long  effort  prevailed  upon  him  to  con- 
sent to  meet  one  agent  of  the  contesting  town  and  ac- 
knowledge his  identity,  if  he  could  be  assured  that  no 
effort  would  be  made  to  track  him  on  his  return,  or  to 
arrest  him.  As  the  word  of  the  overseer  was  considered 
ample  guarantee  against  a  later  settlement,  these  terms 
were  accepted,  and  soon  after,  the  agent  saw  in  a  railroad 
station  in  Boston  a  man  who  easily  convinced  him  that 
he  was  indeed  the  still  lawful  husband  of  the  woman  in 
question.  So  the  burden  so  nearly  dropped  was  again 
taken  up,  and  all  hope  of  relief  seemed  at  an  end. 

It  was  perhaps  six  months  after  the  man  was  left  sit- 
ting in  the  station  with  a  respectable  brother  who  fully 


I50  THE    SETTLEMENT    LAW  [D 

identified  him,  if  there  had  remained  a  lingering  hope, 
and  who  also  said  he  had  not  seen  him  for  twenty  years 
past,  and  meanwhile  no  trace  of  the  man  had  been  found, 
when  one  day  an  agent  who  had  known  the  details  of  the 
case,  but  never  had  seen  the  missing  husband,  went  to 
the  Charlestown  receiving-ship  on  business.  It  was 
blowing  a  stiff  north-easter,  and  the  visitor,  coming  up 
from  the  landing  carried  his  umbrella  over  his  back,  like  a 
schooner  running  before  a  gale  with  a  square  sail  set. 
Coming  round  the  upper  edge  of  the  dry  dock  was  a  man 
with  umbrella  in  position  exactly  opposite  to  that  of  his 
own:  that  is,  exactly  at  "charge  bayonets."  As  he 
stubbed  along,  into  the  teeth  of  the  gale,  only  the  lower 
six  inches  of  his  two  sturdy  legs  were  visible  to  the  man 
running  down  before  it,  but  the  way  in  which  those  heavy 
farming  boots  drove  their  toes  into  the  muddy  surface  of 
the  ground  was  characteristic  of  one  man,  and  only  one. 
What  was  he  doing  here  on  such  a  day  as  this?  And 
even  if  the  guess  as  to  identity  was  right,  why  should  he 
be  here  on  a  settled  case?  The  time  and  place  of  meet- 
ing left  no  occasion  for  settling  such  queries,  even  if  it 
had  seemed  best  to  be  recognized  by  him,  which  it  did 
not,  and  it  was  not  till  a  month  later  that  a  chance  visit 
of  the  overseer  seen  in  the  gale  to  the  man  who  saw  him, 
gave  opportunity  to  test  the  theory  then  hurriedly  formed. 
That  theory  was :  "the  missing  man  is  a  sailor,  he  has 
been  since  the  war  on  the  receiving-ship,  the  receiving- 
ship  is  not  Massachusetts  soil,  by  which  the  agent  makes 
his  story  technically  true,  and  he  is  now  going  on  board 
to  see  him  for  some  purpose. ' ' 

A    FLANK    MOVEMENT. 

When  the  business  on  which  he  came  into  the  pres- 
ence of  the  theorist  was  done,  and  the  visitor  had  said 


Division  Three.]  A     CLUE     FOUND  I5I 

"good-morning,"  and  was  ready  to  go,  the  other  managed 
to  get  a  look  square  into  both  his  eyes,  and  then  rapidly 
and  at  the  same  time  indifferently  asked,  "By  the  way, 
how  long  has  been  on  the  receiving-ship?  "  If  in- 
stead of  that  question  asked,  he  had  thrust  a  needle  at 
white  heat  into  the  breast  of  the  old  man,  he  would  have 
shrunk  back  in  the  same  way,  with  both  hands  tossed  a 
little  into  the  air.      If  only  he  had  waited  a  minute  he 

might  have  answered,  "What  ?  "  or  even  "  I  don't 

understand  what  you  are  talkin'  about,"  but  the  sudden- 
ness of  the  question  left  him  outside  his  burrow,  and  the 
wily  old  fox  gasped  out,  "How  did  you  know  he  was 
there?  "  before  he  realized  that  the  secret  he  had  sworn 
to  keep  was  no  longer  his. 

THE    MISSING    MAN    FOUND. 

The  description  of  the  man  brought  back  by  the  agent 
who  first  saw  him  in  the  station  was  given  to  a  time-taker 
in  the  navy-yard  the  next  week,  and  he  was  requested  to 
find  the  man  under  whatever  alias.  He  soon  returned 
answer  that  he  had  been  employed  in  the  yard  and  on  the 
ship  for  the  last  ten  years,  and  so,  by  opinion  of  justices, 
1  Metcalf  580,  not  in  Massachusetts  for  settlement,  if 
living  there,  but  in  a  capacity  that  allowed  him  to  live 
six  miles  away  in  a  neighboring  city,  where  an  investi- 
gation showed  him  to  have  paid  a  tax  for  many  years 
past,  with  the  consequent  gaining  of  a  settlement  there 
that  entirely  relieved  the  defendant  town.  Upon  that 
evidence  the  case  was  denied  and  further  expense  ceased. 
It  is  proper  to  say,  in  ending  this  part  of  the  case,  that 
there  was  probably  no  wilful  misleading  in  the  story  of 
the  official,  as  to  residence.  It  was  a  mistake,  but  not  a 
lie,  or  if  there  was  a  lie  it  was  told  to  him,  and  not  by 


152  THE     SETTLEMENT    LAW  [Division  Three. 

him.  What  he  thought  was  the  truth  served  his  purpose, 
and  he  looked  no  deeper. 

If  he  had,  he  would  have  found  there  was  a  romance 
connected  with  the  case.  When  the  father  of  this  much- 
marrying  sailor  landed  in  America,  it  is  quite  likely  that 
the  death  of  his  wife  may  have  made  it  proper  to  place 
the  boy  in  an  educational  home  which  then,  as  now, 
offered  its  excellent  privileges  to  boys  who  had  lost  their 
own  homes.  He  was  there  but  a  short  time  when  the 
visit  of  a  gentleman  who  came  from  a  town  near  the  place 
where  the  institution  was,  opened  up  an  avenue  for  pro- 
motion and  usefulness,  if  the  boy  had  not  been  radically 
bad.  It  was  proposed  by  the  gentleman  to  take  him  to 
his  place,  and  to  give  him  the  education  and  privileges 
of  a  son,  and  if  he  proved  worthy,  to  adopt  him.  But 
the  relation  that  the  boy  at  once  established  with  the 
gentleman's  daughter  who  was  a  little  younger  than  him- 
self quickly  ended  that  plan,  and  with  it  the  advantage  of 
the  institution  connection.  The  boy  went  his  way,  and 
in  due  time  the  young  woman  was  respectably  married  in 
her  native  town,  and  lost  her  husband  by  early  death, 
while  the  boy  went  to  sea  and  then  to  his  marriage  in 
1856. 

On  one  of  the  returns  of  the  vagrant  sailor  from  his 
long  voyages,  it  chanced  that  in  going  up  Broadway, 
New  York,  he  met  this  widow,  and  though  they  had 
never  met  since  childhood  or  little  later,  there  was  in 
some  way  a  recognition.  Then  there  was  a  revival  of 
the  tenderness  on  her  part  that  had  sent  him  away  many 
years  before,  and  as  he  readily  professed  himself  a  wid- 
ower, they  were  married  in  New  York  at  that  time,  and 
he  had  lived  with  her,  as  before  stated,  until  the  in- 
vestigation made  necessary  by  the  course  of  events  first 


Division  Three.]  A    BETTER    TIME    HAS    COME  1 53 

revealed  to  the  poor  woman  that  she  never  had  been  his 
lawful  wife.  When  he  was  at  last  tracked  home,  he  was 
so  shaken  by  terror  at  the  prospect  of  long  delayed  retri- 
bution, that  the  premature  debility  that  goes  along  with 
a  sailor's  life  broke  him  down  into  a  nervous  collapse 
that  was  almost  as  pitiful  as  the  distress  of  the  respec- 
table woman  whom  he  had  so  long  and  so  grossly  de- 
ceived. 

233.  The  case  thus  detailed  at  length  was  most  satis- 
factory in  the  attainment  of  the  object  with  which  the 
effort  began,  and  it  was  not  the  least  of  the  sources  of 
gratification  in  its  review,  that  success  had  been  attained 
in  opposition  to  tactics  that  cannot  be  commended. 

To  state  these  things  is  happily  to  suggest  a  doubt  as 
to  the  accuracy  of  the  statements  made,  so  far  is  the 
present  practice  removed  from  that  of  a  time  not  very 
remote.  Not  that  now  we  can  entirely  trust  another  to 
do  our  work  as  well  as  we  should  do  it :  that  time  is  still 
far  away,  and  probably  will  never  come,  but  the  day  of 
mutual  distrust  and  deception;  the  day  of  cheating  be- 
cause in  some  future  transaction  we  shall  get  the  worse 
end  of  the  bargain,  may  fairly  be  said  to  be  forever  at  an 
end.  This  result  is  almost  wholly  the  effect  of  the  more 
intimate  personal  relations  that  have  followed  the  in- 
creasing facility  for  inexpensive  travelling,  and  in  this 
way  have  caused  much  business  that  was  imperfectly  done 
by  letter,  to  be  now  completely  done  by  personal  inter- 
view. And  while  it  would  be  absurd  to  say  that  there 
are  not  now  and  will  not  always  be  men  who  cheat  be- 
cause it  is  their  nature  to,  it  is  also  true  that  men  who 
have  met  and  discussed  business  differences  in  honorable 
and  pleasant  relations  with  each  other,  are  much  less 
likely  to  conceive  such  suspicions  of  each  other  as  seem 


154  THE     SETTLEMENT    LAW  [Division  Three. 

to  justify  precautionary  finesse,  than  those  who  have  no 
personal  acquaintance.  When  to  these  business  associa- 
tions is  added  the  guarantee  that  comes  with  pleasant 
social  and  friendly  conditions,  as  in  the  present  Relief 
Association  meetings,  it  may  safely  be  said  that  the  rela- 
tions of  the  relieving  officers  toward  the  great  questions 
which  they  are  chosen  to  consider  between  them,  and 
toward  each  other,  were  never  so  satisfactory  as  they  now 
are.  The  benefit  of  this  change  has  come  as  much  to 
the  worthy  poor  as  to  the  interests  of  the  different  munici- 
palities served,  because  all  increase  of  knowledge,  when 
modified  by  the  compassion  that  experience  gives,  serves 
to  clear  the  sight  of  those  mists  that  imposture  spreads, 
and  thus  to  concentrate  the  effort  for  relief  where  it  is 
most  needed  and  most  properly  bestowed.  From  this 
convergence  of  rays  of  intelligence  only  the  vicious  and 
those  who  love  darkness  shrink,  fearing  to  come  to  the 
light  where  they  will  be  known. 

234.  Said  a  member  of  the  Association  to  a  stranger 
overseer  who  was  reviewing  his  work  with  a  strong  ap- 
pearance of  expecting  to  come  upon  concealed  facts : 
"You  are  not  a  member  of  the  Association,  are  you?" 
"No,  I  live  too  far  away."  "Well,  if  you  were,  I  think 
you  would  by  this  time  have  made  up  your  mind  to  two 
things:  that  I  am  bright  enough  to  know  a  poll-tax  when 
I  see  it,  and  not  mean  enough  to  deny  it  when  I  have 
found  it. " 

235.  In  chapter  84,  section  14,  we  learn  that  in  case 
of  a  person  standing  in  need  of  immediate  relief,  the  re- 
lieving town  may  collect  from  the  town  of  settlement  for 
proper  expenses  incurred  in  the  three  months  before  the 
date  of  the  notice.  This  long  time  is  given  so  that  acci- 
dent involving  unconsciousness  on  the  part  of  the  person 


Division  Three.]  ESTOPPEL    BY    VERDICT  1 55 

aided,  or  delay  made  necessary  by  difficulty  in  finding  the 
real  place  of  settlement  shall  not  prevent  a  just  payment. 
There  is  no  doubt  that  it  does  allow  a  careless  or  even 
unjust  town  agent  to  assume  expenses  that  he  would  not 
incur  for  one  of  his  own  poor,  which  charges  the  town  of 
settlement  may  pay  rather  than  take  the  trouble  and  ex- 
pense of  a  lawsuit  to  avoid,  but,  as  said  before,  in  the 
long  run  the  provision  is  for  the  best.  By  the  same  sec- 
tion we  learn  that  if  the  notifying  and  the  alleged  settle- 
ment town  cannot  agree  as  to  the  responsibility  for  the 
case,  the  former  will  have  two  years  in  which  to  enter 
suit,  the  time  to  be  reckoned  from  the  date  of  the  notice, 
and  if,  on  suit,  the  case  is  determined  to  belong  to  the 
defendant  town,  that  verdict  will  forever  bar  litigation 
between  these  two  on  that  point,  as  we  learn  by  the  next 
section. 

ESTOPPEL    BY    VERDICT. 

236.  This  provision,  apparently  so  sweeping,  is  really 
very  limited  in  its  application.  As  appears  in  the  case 
cited,  New  Bedford  v.  Hingham,  Wj  Mass.  445,  it  does 
not  cut  off  the  right  of  the  defendant  to  a  hearing  on  the 
question  of  the  necessity  for  aid,  nor  on  that  of  other 
legality  of  aid,  nor  does  it  in  the  least  degree,  imply 
that  it  may  not  raise  its  former  or  any  later  known  de- 
fence against  any  other  town  than  that  with  which  the 
suit  was  had,  with  perhaps  new  evidence  that  will  cause 
it  to  prevail.  While  this  provision  is  intended  to  pre- 
vent interminable  lawsuits  between  angry  towns,  it  is 
easy  to  see  that  its  effect  is  of  doubtful  value  in  an 
equitable  point  of  view.  One  would  say  that  it  ought 
always  to  be  possible  and  proper  to  correct  the  errors  of 
the  past,  but  in  this  case,  if  the  blundering  incapacity  of 
a  town  officer  of  a  past  generation   has   allowed   a   case 


I56  THE    SETTLEMENT    LAW  [Division  Three. 

to  be  improperly  fastened  upon  his  town,  there  is  no 
escape  for  his  successors  in  office,  so  long  as  the  persons 
aided  continue  to  live  in  the  victorious  town.  If  they 
move  to  another,  the  defendant  may  show  the  fact  of  non- 
settlement  and  get  his  verdict,  but  if  they  go  back  to  the 
original  town  the  year  after,  there  would  seem  to  be  no 
doubt,  if  we  follow  the  language  of  this  section  literally, 
that  the  defendant  would  again  be  held.  This  fact  em- 
phasizes in  the  strongest  manner  the  weighty  conse- 
quences of  the  acts  of  the  constantly  changing,  often 
quite  irresponsible  officer  of  some  of  the  smaller  towns 
of  the  State.  Chosen  into  the  office  of  selectman,  and 
having  afterward  put  upon  him  the  duties  of  an  assessor, 
and  overseer  of  the  poor,  he  comes  into  office  with  no 
fitness  for  them,  (for  the  discharge  of  which,  in  their  va- 
riety and  number,  a  college  and  then  a  professional  edu- 
cation would  be  a  fitting  preliminary,)  keeping  no  record 
of  his  cases,  so  that  the  reasons  that  induced  him  to  con- 
cede the  settlement  of  this  person,  by  acts  done  by  his 
ancestors  fifty  years  ago,  are  now  as  absolutely  lost  as  the 
cloud  that  vanished  yesterday,  it  yet  happens  that  if  he, 
contesting  points  of  law  and  fact  with  a  trained  city  or 
State  official,  failed  to  make  the  right  appear,  this  clause 
will,  under  the  conditions  named,  make  the  effects  of  the 
error  permanent  so  far  as  his  town  is  concerned.  Those 
who  have  followed  the  lives  of  the  unhappy  inmates  of 
asylums  for  the  insane  and  seen  them  live  on,  year  after 
year,  can  calculate  how  much  one  such  blunder  may  cost. 
The  last  word  to  be  said  on  this  subject  is :  that  no 
town  can  afford  to  keep  a  careless  or  incompetent  man  in 
charge  of  the  investigation  of  this  branch  of  the  public 
service  for  a  year,  and  none,  however  poor,  can  afford  to 
allow  one  trained  and  efficient  to  go  out  of  its  service  if 


Division  Three.]  LAWFUL    CHARGES  1 57 

he  can  be  made  to  stay.  The  main  value  of  an  experi- 
enced official  in  investigations  of  this  kind,  is  in  the 
prevention  of  mistaken  or  unjust  claims,  and  as  this  does 
not  show  on  the  balance-sheets  of  his  years  of  service,  so 
none  but  one  skilled  and  wise  can  know  its  full  value. 

WHAT    ARE    LAWFUL    CHARGES? 

237.  Coming  back  now  to  section  14  it  is  necessary  to 
consider  for  a  short  time  what  charges  a  town  may  law- 
fully assume,  and  collect,  for  as  a  rule  it  may  collect  of 
another  any  that  it  is  legally  obliged  to  pay.  There  is 
one  old  decision  of  the  court  that  implies,  without 
directly  stating,  that  there  are  some  charges,  excessive 
in  amount,  which  a  town  could  not  collect  of  another, 
even  when  itself  held  to  pay.  Perhaps  if  one  town  were 
maintaining  a  hospital  in  which  the  inhabitants  of 
another  could  be  cared  for  at  a  dollar  a  day,  and  thus  be 
aided  through  expensive  surgical  accidents  at  a  charge 
little  greater  than  that  of  board  alone,  and  if  at  the  same 
time  the  town  thus  sharing  the  benefits  of  the  provision, 
were  called  to  provide  for  a  person  having  a  legal  claim 
in  the  place  having  the  hospital,  itself  having  none,  it 
might  be  held  that  the  large  charges  for  capital  opera- 
tions and  subsequent  skilled  nursing  for  which  it  was 
legally  held,  could  not  be  collected  of  the  place  main- 
taining the  hospital,  and  the  reason  would  be  that  one 
town  has  no  equitable  right  to  charge  another  more  for  a 
given  service  than  that  town  would  charge  it  for  the 
same.  If  A.  finds  its  advantage,  for  ten  years,  in  getting 
along  without  a  thing  that  B.  steadily  maintains  and 
gives  A.  the  benefit  of  meantime,  and  on  the  eleventh 
year  needs  the  thing,  for  the  benefit  of  a  person  settled 
in  B.,  it  has  no  business,  apparently,  on  equitable 
ground,  to  make  B.  pay  for  its  exceptional  necessity. 


I58  THE    SETTLEMENT    LAW  [Division  Three. 

LAWFUL    CHARGES. 

238.  But  the  general  rule  makes  it  the  duty  of  each 
place  to  incur  only  such  bills  as  it  can  legally  collect, 
and  these  claims  can  be  separated  from  all  others  by 
carefully  reading  section  27  of  this  chapter  in  connection 
with  that  now  under  consideration. 

"Every  city  and  town  shall  be  held  to  pay  any  expense 
necessarily  incurred  for  the  relief  of  a  pauper  therein  by 
any  person  not  liable  by  law  for  his  support,  after  notice 
and  request  made  to  the  overseers  thereof,  and  until  pro- 
vision is  made  by  them."  This  is  one  of  the  most  vital 
and  least  considered  of  the  statutes  of  relief,  and  there  is 
none  in  which  the  lines  of  official  duty  are  more  plainly 
marked.  Note  that  the  necessity  is  upon  the  town  where 
the  case  lives,  primarily,  and  not  contingent  on  settle- 
ment, as  the  immigrant  of  yesterday  is  for  this  purpose 
on  the  same  basis  as  a  Mayflower  descendant.  Then  see 
that  it  is  only  for  expense  necessarily  incurred  that  either 
town  is  liable.  If  luxuries  are  provided,  or  necessities 
in  excess,  there  is  no  legal  claim  for  them. 

AID    TO    PARENTS    AND    CHILDREN. 

239.  Turning  back  to  section  6  of  this  chapter  we 
shall  learn  who  are  the  persons  who  cannot  legally  call 
upon  the  town  for  aid  to  relatives,  and  shall  perceive  that 
claims  of  this  kind  go  up  and  down,  and  not  laterally. 
We  might  not,  by  the  reading  of  the  statute  alone,  infer 
what  is  set  forth  in  Brookfieldv.  Warren,  128  Mass.  287, 
that  a  man  cannot  be  made  to  support  the  children  of  his 
wife  by  a  previous  marriage,  and  is  not  pauperized  by  aid 
to  them.  "After  notice  and  request"  seems  plain 
enough,  and  yet  there  is  no  provision  that  is  more  contin- 
ually forgotten  or  ignored. 


Division  Three.]  NOTICE    AND    REQUEST  159 

A  man  comes  to  the  overseers  and  says  that  he  cannot 
care  for  the  woman  whom  he  took  from  an  employment 
bureau  any  longer,  and  that  he  will  expect  the  town  to 
pay  for  the  nurse  he  has  been  obliged  to  keep  for  the  last 
week,  as  well  as  for  the  bedding  the  patient  has  spoiled. 
A  doctor  comes  and  says  that  he  is  tired  of  waiting  for 
the  man  who  broke  his  leg  down  at  the  mill  last  month 
to  hear  from  his  friends  in  England,  and  shall  hold  the 
town  if  the  man  fails  to  pay.  These  claims  are  abso- 
lutely and  entirely  outside  the  law,  which  provides  that 
there  shall  be  no  liability  for  any  expense  incurred  be- 
fore notice.  The  terms  of  this  provision  are  so  arbitrary 
and  so  hard  that,  if  a  doctor  were  called  to  reduce  a  dis- 
location or  to  attend  a  woman  in  labor,  he  could  not  col- 
lect for  the  service,  unless  he  first  notified  the  overseers  of 
the  claim,  and  made  the  equally  necessary  request  that 
they  should  otherwise  provide. 

NOTICE    AS    A    NECESSARY    PRELIMINARY. 

240.  And  the  notice  and  request,  though  not  neces- 
sarily in  writing,  must  be  an  intelligible  transference  of 
the  responsibility.  A  person  may  give  notice  for  an- 
other, when  requested  by  his  principal  to  do  so,  but  a 
notice  by  the  agency  of  a  landlord  for  a  doctor,  though 
authorized  and  accepted,  would  not  imply  a  notice  by 
himself,  for  himself,  nor  vice  versa. 

Lamson  v.  Newbaryport,  14  Allen  30,  before  cited, 
furnishes  a  decisive  comment  upon  the  final  clause,  and 
shows  that  the  provision  made,  which  prevents  future 
claim,  is  not  necessarily  removal,  but  only  an  offer  of 
support,  by  the  responsible  officers. 

It  is  not  difficult  to  see  how  great  would  be  the  abuse 
of  the  public  credit  if  it  were  not  for  the  salutary  check 


l6o  THE    SETTLEMENT    LAW  [Division  Three. 

involved  in  the  provision  that  no  claim  shall  arise  until 
after  notice  and  request,  for  it  will  be  seen,  by  the  per- 
sistency with  which  these  claims  are  now  urged,  how 
resistless  would  be  the  effort,  if  all  those  landlords  and 
other  creditors  of  the  poor  could  hold  an  alternative  on 
the  public  treasury.  It  would  be  of  little  use  for  the 
town  to  provide  a  public  almshouse  and  a  town  doctor,  if 
it  could  legally  be  called  upon  to  pay  the  accrued  bills 
of  the  proper  beneficiaries  of  these  charities,  months  after 
they  were  contracted  in  the  homes  of  the  poor. 

241.  Section  16,  "When  a  person  is  supported  in  a 
place  other  than  that  in  which  he  has  his  settlement,  the 
place  liable  for  his  support  shall  not  be  required  to  pay 
therefor  more  than  at  the  rate  of  two  dollars  a  week,  if 
it  causes  the  pauper  to  be  removed  within  thirty  days 
from  the  time  of  receiving  legal  notice  that  such  aid  has 
been  furnished."  It  is  interesting  to  notice  that  the 
sum  that  the  aiding  town  would  be  obliged  to  accept  as 
payment  in  full  of  all  demands,  was  doubled  in  1873, 
and  even  now  the  blank  dismay  with  which  a  town  that 
has  legally  spent  one  hundred  dollars  in  four  weeks,  hears 
that  it  must  be  content  with  less  than  a  tenth  of  that  sura 
in  payment,  casts  a  strong  light  on  the  incapacity  or  mis- 
management that  made  such  a  provision  necessary.  It 
will  readily  be  seen  that  as  a  town  can  aid  a  case  three 
months  before  a  notice  is  necessary,  the  temptation  to 
"get  even"  with  some  other  place  for  some  previous 
sharp  practice  would  be  pretty  strong,  and  under  such 
unchecked  provocations,  retaliated  with  each  opportunity, 
it  is  easy  to  imagine  the  relief  service  between  the  towns 
degenerating  into  a  mean  warfare  of  culpable  extrava- 
gance. 

This   remedy   of   removal   for  the  purpose  of  coming 


Division  Three.]  REMOVAL    AND    DENIAL  l6l 

within  the  thirty  days,  is  now  never  used  except  to  gain 
the  power  to  dictate  an  equitable  settlement  where  there 
has  been  incompetent  management  or  excessive  charges, 
but  it  is  proper  to  remark  that  an  offer  to  remove  is  not 
a  removal,  and  that  the  actual  removal  of  the  remains  of 
the  person  on  whose  account  the  expense  arose,  is  not  a 
removal  within  the  meaning  of  the  act. 

The  most  singular  instance  of  its  exercise  was  twenty- 
five  years  ago  when  a  city  was  obliged,  by  the  occurrence 
of  a  small-pox  case,  of  a  mild  type,  to  go  to  an  expense 
of  six  hundred  dollars  in  isolation  and  sanitary  precaution 
for  this  case  alone.  It  chanced  that  the  patient,  ready 
for  discharge  at  the  end  of  the  third  week,  was  asked  to 
take  a  convalescent's  ride  by  a  friend  of  the  overseers  of 
the  town  of  settlement,  and  this  friend  carried  him  to  a 
neighboring  town  and  there,  with  his  consent,  left  him. 
The  aiding  city  seems  to  have  accepted  the  removal  as 
bringing  its  claim  down  to  the  statute  allowance,  but 
there  is  much  question  whether  the  steps  necessarily 
taken  by  the  board  of  health  under  the  contagious  dis- 
eases act,  would  not  have  given  it  a  remedy  against  such 
sharp  practice. 

242.  Section  29  embodies  the  law  of  denial,  and  the 
only  change  from  the  provision  there  enacted  is  in  the 
fact  that  chapter  90,  section  2  of  Acts  of  1891  shortens 
the  time  of  legal  denial  from  two  months  to  one  month. 
It  will  be  noticed  that  this  as  well  as  the  notice  of  set- 
tlement, is  ordered  to  be  made  in  writing  and  under  the 
direction  of  the  board  of  overseers,  and  the  orders  for 
removal  whether  out  of  the  State  in  section  26,  or  to  the 
town  of  settlement  in  section  28,  are  to  be  done  on  no 
less  authority.  In  a  case  of  voluntary  removal  of  a  per- 
son aided,  by  an   overseer  or  an  agent,  the  question  of 


1 62  THE    SETTLEMENT    LAW  [Division  Three. 

power  to  remove  cannot  arise,  but  in  a  case  where  a  person 
aided  declines  to  remove  to  the  place  of  settlement,  it  is 
the  practice  of  some  well-informed  boards  not  to  attempt 
the  forcible  removal  on  any  less  authority  than  the  written 
order  of  the  board  directed  to  the  removing  agent  and 
attested  by  the  clerk  of  the  board. 

It  will  be  noticed  that  in  case  the  notified  place  neither 
denies  nor  moves  in  a  month,  the  last  clause  empowers 
the  notifying  town  to  remove  the  case  to  the  town  of 
alleged  settlement,  and  provides  that  by  failure  to  deny, 
the  town  to  which  the  case  is  removed  shall  be  estopped 
in  any  action  for  such  expense  as  has  accrued,  but  not, 
as  in  case  of  suit,  from  right  to  deny  in  future,  nor 
apparently  from  contesting  that  the  expense  was  illegal 
or  excessive  in  the  case  then  pending.  Shelburne  v. 
Buckland,  124  Mass.  117,  cites  law  of  estoppel  by  fail- 
ure to  deny,  while  W.  Bridgewater  v.  Ware  ham,  138 
Mass.  305,  shows  that  the  denial  must  be  in  terms  and 
not  inferential. 

243.  Denials  of  cases  that  may  at  last  be  acknowleged 
are  continually  and  properly  made,  when  the  time  for 
the  necessary  investigation  is  too  short.  Here,  again,  the 
unwritten  law  of  courtesy  and  fair-dealing  has  its  illus- 
tration, for  there  is  nothing  in  the  statute  or  the  legal 
form  of  notice  or  denial  that  makes  any  word  of  explana- 
tion necessary  on  either.  The  "objections  to  the  re- 
moval" commanded  in  section  29  are  contained  in  the 
formula  "we  are  satisfied  that  this  is  not  the  place  of 
settlement,"  and  there  is  no  legal  objection  to  a  man's 
being  very  unfair  while  still  within  his  rights.  But  it 
is  not  to  hinder  and  disoblige  that  the  denial  alluded  to 
above  is  used,  and  a  single  line  in  the  blank  space  to  the 
effect  that  "Mrs.  H.  on  whom  we  depend  for  evidence  is 


Division  Three.]        CHILDREN    BEFORE    MARRIAGE  1 63 

in  Europe,  and  will  not  come  back  for  three  months," 
will  be  sufficient. 

In  Carverv.  Taunton,  152  Mass.  484,  a  notice  was  sent, 
giving  correct  name  of  family  but  giving  three  children, 
not  named,  in  place  of  five,  the  correct  number.  The 
notice  was  held  to  be  defective  by  the  court,  on  account 
of  the  error  in  numbering,  which  in  case  of  removal 
might  have  involved  the  removal  of  persons  not  in  the 
notice. 

Having  thus  made  a  rapid  sketch  of  the  principal  pro- 
visions of  chapter  84,  it  is  proposed,  before  closing  with 
some  comments  upon  chapter  145,  relating  to  marriage, 
to  mention  briefly  one  or  two  collateral  subjects,  rather 
for  the  purpose  of  including  in  one  place  the  more  gen- 
eral rules  with  which  we  have  to  deal  than  because  there 
is  anything  new  to  be  said  about  them.  The  first  is  that 
statute  which  provides  for  the  status  of  children  born 
before  marriage  of  parents  who  are  afterward  married. 
This  will  be  found  in  Public  Statutes,  chapter  125,  sec- 
tion 5.  It  will  be  noticed  that  it  makes  no  provision  for 
legal  inquiry  or  authentication,  and  apparently  leaves  the 
decision  to  such  ordinary  proof  and  inference  as  take  the 
place  of  legal  process  in  daily  affairs,  namely,  to  reputed 
fact  among  acquaintances  of  verbal  acknowledgment,  and 
the  existence  of  the  family  ties  of  affection  that  com- 
monly accompany  such  relations.  For  a  more  extended 
comment  on  this  subject  the  reader  is  referred  to  the 
paragraph  on  illegitimate  children  in  division  two. 

244.  Another  provision,  and  to  us  a  more  interesting 
one,  as  having  grown  out  of  the  case  of  the  fugitive 
sailor's  wife's  second  brood,  (having  been  passed  when 
it  was  believed  he  never  would  be  found,)  is  that  which 
gives  the  issue  of  a  marriage  done  in  good  faith  a  settle- 


1 64  THE    SETTLEMENT    LAW  [Division  Three. 

ment  through  the  parent  capable  of  contracting  marriage. 
It  will  be  found  in  chapter  145,  section  14,  of  the  Public 
Statutes. 

ADOPTION    OF    CHILDREN. 

245.  It  now  remains  to  say  a  few  words  on  the  statutes 
relating  to  the  adoption  of  children,  for  among  even  the 
poorest  of  our  dependents  we  find  children  who,  we  are 
told,  have  been  adopted  by  those  having  them  in  charge. 
"How  adopted?  "  is  the  question.  The  parents  in  their 
dying  hour  may  have  given  them ;  the  persons  having 
them  may  have  come  under  written  obligation  to  protect 
and  rear  them,  but  none  of  these  steps  avail  in  a  question 
of  settlement.  It  is  only  the  action  of  the  Probate  Court, 
perfect  in  statute  form,  that  can  give  the  rights  that  come 
with  legal  adoption.  The  conditions  under  which  adop- 
tion may  be  effected,  and  the  consequences  that  ensue 
upon  its  consummation  are  set  forth  in  chapter  148  of 
the  Public  Statutes.  By  section  2  of  that  act  it  will 
appear  that  if  the  child  to  be  adopted  is  more  than  four- 
teen years  old  its  written  consent  is  necessary,  and  that 
of  its  parents  or  of  the  survivor,  or  of  the  mother  only  if 
illegitimate,  in  all  ordinary  cases.  But  by  section  3  the 
exceptions  to  this  rule  are  very  numerous  and  remark- 
able, and  when  considered  in  the  light  of  the  later  de- 
crees of  the  Supreme  Court,  on  appeal,  in  which  the 
principle  is  affirmed  that  the  ultimate  good  of  the  child, 
and  not  the  rights  or  even  the  affections  of  the  parent,  is 
the  consideration  that  chiefly  concerns  the  court,  it  must 
be  plain  that  the  difficulties  in  securing  a  decree  are  far 
from  insuperable. 

Section  6  provides  that  when  all  the  necessary  steps 
have  been  taken,  the  court  shall  make  a  decree  by  which 
except  as  regards  succession  of  property,  all   rights  and 


Division  Three.]  ADOPTION  1 65 

other  legal  consequences  including  settlement,  shall 
thenceforth  exist.  Section  7  provides  that  no  person  by 
adoption  shall  lose  any  right  which  he  would  otherwise 
have  had,  to  inherit  property  from  his  natural  parents. 

246.  Upon  the  making  of  a  decree  of  adoption  the 
status  of  the  child  is  at  once  changed  by  the  new  rela- 
tion, and  he  becomes  at  once,  "for  all  purposes,"  the 
court  says,  as  though  he  had  been  the  born  child  of  those 
who  have  adopted  him.  Even  the  effect  of  illegitimacy, 
which  the  statute  says  shall  continue  during  the  minority 
of  the  child,  appears  here  to  be  suddenly  terminated  if 
the  language  of  the  court  is  to  have  its  ordinary  interpre- 
tation. A  singular  instance  of  the  unexpected  results 
of  these  provisions  occurred  a  few  years  ago,  which  is 
worthy  of  record.  A  man  sixty  years  old  having  a  legal 
settlement  in  A.  was  deserted  by  his  wife  twenty  years 
ago,  and  she  is  still  away,  her  whereabouts  unknown. 
He  went  to  C.  ten  years  ago,  and  hired  a  house-keeper 
there,  thirty  years  old,  who  had  lived  single  in  C.  more 
than  six  years,  and  had  a  settlement  there.  One  year 
after  he  took  the  woman  to  A.  she  bore  him  a  child,  and 
the  woman  and  child  continued  to  live  with  him  in  A. 
until  four  years  ago,  when  the  mother  died,  having  lived 
in  A.  more  than  five  years  without  aid,  and  gained  a  set- 
tlement there,  which  the  illegitimate  child  could  not 
take,  because  that  was  not  the  place  of  her  settlement 
"at  the  time  of  its  birth."  So  when  a  year  after  the 
death  of  the  mother,  the  child  was  placed  out  to  board, 
the  expense  came  on  C. ,  where  she  was  settled  "at  the 
time  of  its  birth."  That  town  taking  steps  to  move  the 
little  one  to  a  public  institution,  the  father  got  a  decree 
of  adoption  from  the  court,  and  the  settlement  then 
changed  to  A. 


1 66  THE    SETTLEMENT    LAW  [Division  Three. 

But  the  phrase  "in  all  respects  as  though  the  child  of 
the  adoptive  parents,"  has  one  possible  result  which  may 
not  have  been  foreseen.  That  is  in  a  case,  not  at  all  un- 
reasonable or  far-fetched,  where  a  settled  child  should  be 
adopted  by  unsettled  parents.  Would  such  a  child  there- 
upon be  unsettled?  If  not,  it  does  not  become  "in  all 
respects  ' '  as  though  born  to  the  adopting  parents.  And 
if  it  does  so  lose  its  settlement,  what  shall  we  say  of  the 
application  of  the  inclusive  clause  in  chapter  83,  which 
provides  that  the  only  way  by  which  a  settlement  once 
gained  can  be  lost,  is  by  the  gaining  of  another? 

MARRIAGE. 

247.  Although  the  condition  of  marriage  and  the  re- 
sults arising  from  it  do  more  commonly  engage  the  atten- 
tion of  the  investigator  than  any  other  one  subject,  it  is 
not  proposed,  for  the  reason  that  there  is  little  that  is 
new  in  the  last  thirty  years,  either  in  statute  or  decision, 
to  consider  the  successive  sections  of  the  marriage  law  in 
the  same  manner  that  the  settlement  law  was  reviewed. 
In  place  of  that  course,  which  would  involve  repetition 
of  what  is  better  stated  in  other  books,  it  will  be  more 
for  the  benefit  of  the  beginner,  for  whom  primarily  this 
work  is  undertaken,  to  state  in  general  terms  what  are 
the  applications  of  existing  law  to  the  questions  that  are 
the  most  likely  to  arise,  and  even  when  there  is  no  cita- 
tion of  the  very  language  of  the  statute,  the  reader  may 
feel  reasonably  certain  that  he  can  find  the  principle  in 
the  body  of  the  statute  law.  This  statement  will  include 
several  propositions  that  were  considered  in  the  comments 
upon  the  first  clause  in  the  settlement  law,  and  it  may  be 
well  for  the  beginner  to  glance  at  what  is  there  said  in 
connection  with  what  follows,  for  he  may  find,  even  in 


I  >i\  ision  Three. 


MARRIAGE  1 67 


repetition,  that  some  of  the  propositions  arc  advanced, 
with  new  surroundings,  in  a  way  to  cast  more  light  upon 
this  very  important  branch  of  our  investigation. 

248.  Marriage  is  often  spoken  of  as  a  contract,  and  it 
is  that,  and  also  more  than  that ;  in  this  among  other 
things,  that  whereas  in  most  contracts  the  failure  of  one 
party  absolves  the  other,  there  is  no  such  absolution  here, 
because  the  relation  touches  at  once  collateral  interests 
other  than  those  of  the  contractors,  and  thus  one  contrac- 
tor is  still  held,  for  certain  results  though  it  becomes 
certain  that  there  never  was  a  legal  contract. 

When  one  reads  the  mandatory  provisions  of  the  dif- 
ferent clauses  of  chapter  145,  and  notices  the  penalties 
that  follow  a  violation  of  the  rules,  he  naturally  infers 
that  all  these  processes  thus  guarded  are  essential  parts 
of  the  transaction,  and  that  the  severity  of  the  provisions 
is  made  so  great  because  it  is  necessary  to  prevent  the 
failure  of  the  business  altogether. 

By  section  6  a  magistrate  or  minister  is  forbidden  to 
marry  persons  severally  under  twenty-one  and  eighteen 
years  old. 

By  section  14,  when  a  marriage  is  void  by  reason  of 
previous  marriage,  the  fact  is  ascertained  by  a  process 
that  results  in  a  written  decree. 

By  section  16  the  filing  of  a  previous  notice  of  inten- 
tion of  marriage  is  necessary. 

By  section  18  the  clerk  recording  the  intention  and 
issuing  the  permit  is  saddled  with  a  penalty,  if  the  per- 
sons receiving  it  are  under  age. 

Section  22  provides  that  the  marriage  shall  be  solem- 
nized either  in  the  town  of  residence  of  the  parties  or  of 
the  minister. 

Section   26  promises  fine  and  jail  to  him  who  shall 


1 68  THE    SETTLEMENT    LAW  [Division  Three. 

falsely  pretend  to  have  authority  to  join  people  in  mar- 
riage. 

From  some  analogies  in  the  law  one  would  infer  that 
a  violation  of  any  one  of  these  provisions  might  invali- 
date the  whole  transaction. 

249.  So  far  is  this  from  being  true  that  it  is  no  exag- 
geration to  say  that  a  wilful  transgression  of  nearly  every 
one  of  them,  by  either  the  man  or  woman  proposing 
to  marry,  without  conspiracy  with  the  other,  will  not 
affect  the  validity  of  the  marriage  in  the  least  degree,  for 
some  of  the  legal  effects  of  marriage  settlement  especially. 
This  will  appear  from  the  27th  section  which  provides  that 
if  a  person,  in  violation  of  the  previous  section,  having  no 
power  to  join  people  in  marriage,  assumes  to  do  so,  the 
marriage  will  not  be  invalidated  by  that  fact,  if  either  or 
both  believe  he  has  the  right. 

If  a  boy  of  eighteen  years  old,  with  purpose  to  betray 
a  girl  of  seventeen,  goes  to  a  town-clerk,  and  by  lying 
about  their  ages  gets  him  to  give  them  a  permit,  then 
telling  her  that  a  friend  in  the  next  town  is  a  justice  who 
can  marry  them,  and  the  friend  assumes  to  do  so,  she  be- 
lieving it  is  all  right,  there  is  not  one  step  in  the  trans- 
action that  is  not  in  violation  of  the  statute  provisions, 
and  yet  it  is  confidently  believed  that  this  is  such  a  mar- 
riage, supposing  neither  to  have  been  married  before,  as 
would  change  a  settlement. 

Some  visitors,  deceived  by  provisions  defining  duties 
and  denouncing  penalties,  as,  for  instance,  in  the  case  of 
minors  who  marry  without  consent  of  guardians,  jump  at 
once  to  the  conclusion  that  because  the  act  was  illegal, 
it  was  void,  than  which  there  is  no  greater  mistake.  In  the 
case  above,  the  law  will  punish  the  fraudulent  boy,  and  the 
bogus  magistrate,  and  subject  the  careless  clerk  to  a  fine, 


Division  Three.]  DIVORCE  l6o, 

but  the  act  remains,  for  the  sake  of  the  one  innocent  per- 
son, as  effective  and  permanent  as  though  there  had  been 
no  fraud. 

DIVORCE. 

250.  It  might  not  be  quite  unprofitable  for  us  to  spend 
some  time  on  the  law  of  divorce,  as  that  is  a  subject 
which  with  our  calling  makes  us  only  too  conversant,  but 
the  subject  is  too  complex  for  satisfactory  treatment  here. 
Suffice  it  to  say  that  a  divorce  valid  in  this  State  termi- 
nates the  settlement  rights  of  the  wife  by  the  husband, 
as  though  he  had  then  died,  and  while  nothing  that  he 
gains  or  perfects  after  that  date  can  affect  her,  nothing 
that  he  has  then  gained  is  lost  by  divorce.  His  chil- 
dren, however,  will  continue  to  gain  by  him,  as  though 
no  separation  had  taken  place.  If  a  husband  were  so 
near  gaining  that  he  had  no  settlement  when  the  pre- 
liminary decree  was  issued,  and  gained  before  the  final 
decree  came,  the  wife  would  have  the  benefit  of  that,  for 
the  first  step  is  conditional,  a  decree  nisi,  and  the  state 
between  that  and  the  final  decree  is  not  settled,  but 
liable  to  change  by  new  evidence  or  by  change  of  pur- 
pose. 

Again,  the  two  years  after  which  the  defendant  in  the 
suit  may  again  marry,  dates  from  the  final  and  not  from 
the  conditional  decree.  In  divorces  that  took  place  forty 
years  ago  when  the  defendant  could  marry  again  only  by 
leave  of  the  court,  recorded,  it  will  be  well  to  look,  in 
case  of  remarriage,  for  evidence  of  permission. 

CONCLUSION. 

The  new  century  which  in  a  little  more  than  a  year 
will  open  upon  us,  will  find  the  charities  of  Massachu- 
setts occupying  their  full  share  in  the  minds  and  hearts  of 


I70  THE    SETTLEMENT    LAW  [Division  Three. 

the  benevolent  people  everywhere.  Never  before  has 
there  been  such  purpose  associated  with  such  power  of 
accomplishment.  Race  and  theological  antipathies  and 
prejudices  constantly  exercise  less  and  less  power,  in 
spite  of  the  narrow  minds  that  would  strengthen  and  per- 
petuate them,  and  now  men  of  differing  birth  and  faith 
co-operate  in  the  noble  work  of  relieving  the  misery 
around  them,  with  entire  confidence  in  the  good  faith  of 
each  other.  The  Puritan  Yankee  learns  that  the  best 
men  in  all  the  races  which  have  taken  shelter  in  his 
home  are  much  better  than  the  worst  of  his  own  people, 
and  the  others,  divesting  themselves  of  the  suspicion  that 
isolation  makes  possible,  have  learned  that  prudence  and 
thrift  are  not  enemies  to  large-hearted  sympathy,  but 
rather  the  means  by  which  it  finds  its  most  practical 
expression. 

He  who  becomes  the  agent  of  the  forces  that  thus  meet 
on  neutral  ground,  dedicated  to  good  works,  should  be 
prepared  to  act  upon  the  principle  that  he  can  do  the 
most  good  in  his  calling  by  sinking  his  prejudices,  and 
freely  availing  himself  of  all  the  influences  that  will 
help  on  the  cause  for  which  he  labors.  He  may  be  sure 
that  a  word  from  one  influential  person  of  the  race  of  the 
applicant  will  help  him  more  in  a  minute  than  all  he 
himself  can  do  in  a  long  time.  And  when  he  sees  how 
cheerfully  and  helpfully  the  assistance  is  given,  the  ex- 
perience will  be  beneficial  to  him  as  a  man  and  as  an 
officer. 

It  is  one  of  the  advantages  that  come  to  the  faithful 
visitor,  whether  as  overseer  or  employee,  that  the  unself- 
ishness of  his  mission  opens  all  doors  to  him.  None  is 
too  busy  or  self-absorbed  to  lend  him  a  helping  hand,  and 
in  the  proper  exercise  of  his  office  he  may  feel  a  part  of 


Division  Three.]  CONCLUSION  I  J I 

the  joy  of  one  who  gives  from  his  own  store,  or  of  the 
patriarch  who  knew  that  blessing  followed  his  coming : 
that  he  was  a  friend  to  the  poor  and  needy,  and  one  who 
searched  out  the  cause  that  he  knew  not.  That  this  book 
should  in  any  degree  advance  the  cause  of  true  philan- 
thropy in  our  proud  State  is  the  dearest  wish  of  the  com- 
piler, and  if  it  should  seem  to  the  reader  ill-arranged,  or 
disconnected  or  obscure  in  parts,  the  justice  of  all  these 
criticisms  will  be  freely  admitted  if  only  there  shall  ap- 
pear running  through  every  page  the  golden  thread  of 
purpose  to  unite  all  men  in  an  effort  to  serve  the  inter- 
ests of  the  poor  and  of  those  who  have  none  to  help. 

194  Bradstreet  Avenue,  Beachmont, 
Nov.  10,  1899. 


APPENDIX. 


ATTORNEY   GENERAL'S    OPINIONS. 

Domicil  of  Married  Women. 

February  2,  1899. 
S.    C.     Wrightington,   Esq.,    Superintendent,   State  Adult   Poor, 
Boston,  Mass. 

Dear  Sir,  Your  letter  of  December  3d,  1898,  states  two  cases, 
which  in  my  opinion  are  governed  by  the  same  general  consider- 
ations. 

I.  One  who  is  now  a  pauper  came  with  his  mother  to  this  Com- 
monwealth and  to  Worcester  in  1874.  He  has  acquired  no 
settlement  in  his  own  right.  None  of  his  ancestors  ever  lived  in 
Massachusetts  except  his  mother.  His  father  and  mother  last  lived 
together  in  the  State  of  New  York,  in  the  town  of  Champlain,  where 
he  was  born.  His  father  there  deserted  his  family  and  removed  to 
Michigan,  where  he  lived  until  his  death  in  1896.  His  mother,  after 
her  husband's  desertion,  came  to  Worcester,  where  she  resided,  with- 
out receiving  public  aid,  from  1874  to  1889. 

The  question  submitted  by  your  letter  is,  whether  the  mother  of 
the  pauper  acquired  a  settlement  by  her  residence  in  Worcester 
which  descended  to  her  son.  The  settlement  of  the  mother  is 
claimed  under  the  provisions  of  Sts.  1874,  c-  274i  amended  by  Sts. 
1879,  c-  242>  providing  that  married  women  who  have  not  a  settle- 
ment derived  by  marriage,  who  reside  in  any  place  within  the  state 
for  five  years,  shall  thereby  gain  a  settlement  in  such  place. 

In  Stoughton  v.  Cambridge,  165  Mass.  251,  it  was  held  that  a  set- 
tlement was  gained  by  a  married  woman  in  the  defendant  city  because 
her  husband's  domicile  was  there  for  a  period  of  more  than  five  years, 
although  her  own  domicile,  excepting  so  far  as  it  was  that  of  her  hus- 
band, did  not  remain  constant,  the  court  (Soule,  J.)  saying,  "  It  still 
remains  the  law  of  Massachusetts  that  ordinarily  a  married  woman's 
domicile  is  that  of  her  husband." 

I  do  not  think,  however,  that  the  doctrine  of  Stoughton  v.  Cam- 
bridge is  applicable  to  the  present  case.  The  husband  had  no  domi- 
cile in  Massachusetts,  and  never  had.  He  had  deserted  his  wife  in 
New  York,  and  removed  to  another  state.  After  the  desertion,  she 
had  come  to  Massachusetts,  and  there  resided.  In  my  opinion,  the 
legal  fiction  that  wherever  a  wife  may  be  actually,  she  is  construc- 
tively with  her  husband,  does  not  apply  to  this  case.     Many  excep- 


174  APPENDIX 

tions  have  grown  up  to  the  ancient  doctrine.  At  the  present  day,  the 
law  recognizes  the  wife  as  having  a  separate  existence  and  separate 
rights  and  separate  interests;  the  ancient  unity  is  severed,  so  that 
the  wife  stands  upon  an  equal  footing  with  her  husband  as  to  prop- 
erty, torts,  contracts  and  civil  rights.  He  now  has  no  more  control 
over  her  than  she  over  him,  and  there  seems  to  be  no  reason  why  she 
may  not  acquire  a  separate  residence  when  she  resides  within  and 
her  husband  without  the  state,  and  especially  when  he  has  forfeited 
his  marital  rights  by  his  misconduct.  To  fix  inevitably  her  residence 
with  her  husband  would  subvert  her  statutory  right  of  voting  and 
holding  office,  and  would  compel  an  innocent  wife  to  make  her  home 
in  whatever  voting  precinct  her  offending  husband  might  choose  to 
live.  Cheever  v.  Wilson,  9  Wall.  108,  124.  Shute  v.  Sargent,  36 
Atlantic  Rep.  282.  Burtis  v.  Burtis,  161  Mass.  508.  See  also  Thorn- 
dike  v.  Boston,  1  Met.  245. 

Without  attempting  to  establish  any  general  rule  applicable  to  all 
cases,  I  am  clearly  of  the  opinion  that,  upon  the  case  stated,  the 
mother  of  the  pauper,  by  her  residence  in  Worcester,  gained  a  settle- 
ment there,  notwithstanding  the  residence  of  her  deserting  husband 
in  Michigan. 

II.  The  second  case  stated  in  your  letter  illustrates  still  more 
forcibly  the  absurdity  of  the  proposition  that  for  purposes  of  settle- 
ment the  wife's  domicile  is  to  be  construed  in  all  cases  as  that  of  her 
husband. 

The  pauper  in  this  case  came  to  this  country  in  February,  1895, 
being  then  about  two  years  of  age.  His  father,  a  native  of  Ireland, 
lived  in  Springfield,  Massachusetts,  from  1892  to  1898,  but  without 
acquiring  a  settlement.  His  mother  first  came  to  this  country,  to 
Springfield,  in  1895,  where  she  resided  for  three  years  without  receiv- 
ing aid.  By  tacking  on  to  her  actual  residence  two  years  of  construc- 
tive residence,  while  her  husband  was  living  here  and  before  she 
ever  saw  this  country,  it  is  contended  that  she  had  resided  in  Mas- 
sachusetts for  five  years.  I  do  not  think  the  statute  can  be  con- 
strued to  cover  such  a  case  nor  that  the  doctrine  of  Stoughton  v. 
Cambridge  applies  to  it.  Very  truly  yours, 

HOSEA  M.  KNOWLTON, 

Attorney  General. 

Construction  of  the  1898  Amendments. 

February  7,  1S99. 

Stephen    C.  Wrightington,   Esq.,   Superintendent,   State  Adult 
Poor,  Board  of  Charity,  State  House. 

Dear  Sir, —  Your  letter  of  December  8th  requests  my  opinion 
upon  the  construction  of  Sts.  1898,  c.  425,  §  5.  Your  letter  states 
that  other  sections  of  the  same  act  have  unsettled  many  persons  now 
supported  in  almshouses  in  the  towns  in  which  they  were  formerly 
settled,  and  that  in  some  cases  the  town  authorities  of  said  town 
claim  that  they  have  a  right  to  charge  for  the  support  of  such  paupers, 
under  the  provisions  of  the  section  in  question. 


ATTORNEY    GENERALS    OPINIONS  1 75 

The  section  was  passed  in  substitution  of  Pub.  Sts.  c.  84,  §  iS.  It 
is  apparent  from  the  reading  of  both  the  section  under  consideration 
and  that  for  which  it  was  a  substitute,  that  the  purpose  of  the  Legis- 
lature was  to  provide  aid  for  the  unsettled  temporarily  poor  and 
indigent  in  their  own  homes,  and  thus  to  prevent  the  sundering  of 
family  ties  which  must  have  occurred  had  no  such  provision  been  en- 
acted. Neither  the  former  nor  the  present  act  is  intended  to  include 
persons  whom  the  poor  law  authorities  are  maintaining  in  their  alms- 
houses, as  by  their  removal  thereto,  the  overseers  are  deemed  already 
to  have  decided  that  the  almshouse  and  not  their  homes  was  the 
proper  place  for  them  to  receive  public  aid. 

Very  truly  yours, 

HOSEA  M.  KNOWLTON, 

Attorney  General. 

Construction  of  1898  Amendments  on  the  Question  as 

to  the  Acts  to  be  done  after  May,  i860. 

March  4,  1899. 

S.    C.    Wrightington,    Superintendent,    State    Board   of    Charity, 
Boston,  Mass. 

Dear  Sir, —  Your  letter  of  the  28th  ult.  requires  my  opinion  upon 
the  settlement  of  a  certain  person  named  therein,  the  facts  being  as 
follows.  He  was  born  in  Boston  in  1829  and  has  always  resided  in 
Boston.  He  derived  a  settlement  in  Boston  from  his  father,  who 
died  in  Boston  in  1876  at  the  age  of  79  years.  His  mother  died  in 
Boston  at  the  age  of  87  years.  There  was  a  period  of  five  years  be- 
tween 1872  and  1877  during  which  it  is  admitted  that  the  person  in 
question  resided  in  Boston  five  full  years  without  receiving  public  aid 
and  paid  the  necessary  number  of  taxes  to  give  him  a  settlement 
under  the  retroactive  clause  of  St.  1874,  c.  274. 

The  statute  last  quoted  (St.  1874,  c.  274)  after  prescribing  certain 
conditions  of  settlement  provides  in  section  3  that  "  No  existing 
settlement  shall  be  changed  by  any  provision  of  this  act  unless  the 
entire  residence  and  taxation  herein  required  accrues  after  its  pas- 
sage; but  any  unsettled  person  shall  be  deemed  to  have  gained  a 
settlement  upon  the  completion  of  the  residence  and  taxation  herein 
required,  though  the  whole  or  a  part  of  the  same  accrues  before  the 
passage  of  this  act."  Under  this  statute  the  person  in  question  could 
gain  no  settlement  inasmuch  as  he  already  had  a  settlement  derived 
from  his  father  and  acquired  prior  to  i860.  His  derivative  settlement 
from  his  father  prevented  him  from  acquiring  a  settlement  in  his  own 
right.     Salem  v.  Ipswich,  10  Cush.  517-520. 

St.  of  1898,  c.  425  defeats  all  settlements  not  fully  acquired  subse- 
quent to  May  1,  i860,  "  except  where  the  existence  of  such  settlement 
prevented  a  subsequent  acquisition  of  settlement  in  the  same  place." 
The  settlement  of  the  person  in  question  acquired  before  i860  pre- 
vented the  subsequent  acquisition  by  him  of  a  settlement  in  the  same 
place.  The  case,  therefore,  is  within  the  exception  of  the  statute  and 
the  original  settlement  stands. 


I76  APPENDIX 

This  conclusion  is  confirmed  in  the  case  of  Adams  v.  Ipswich,  116 
Mass.  570,  in  which  the  Court  (Wells  J.)  says,  "  If  the  older  settle- 
ment prevented  the  subsequent  acquisition  of  the  more  recent  one, 
the  former  is  preserved  by  the  exception  in  the  St.  of  1870."  The 
exception  referred  to  in  the  opinion  of  the  Court  is  similar  in  its 
terms  to  that  of  the  St.  of  1898. 

Yours  very  truly, 

HOSEA  M.  KNOWLTON, 

Attorney  General. 

Loss  of  Settlement  under  1898  Amendment. 

Boston,  July  26,  1899. 
S.  C.  Wrightington,  Esq.,  Superintendent,  State  Adult  Poor,  Bos- 
ton, Mass. 

Dear  Sir, —  Upon  the  facts  stated  in  your  letter  of  July  8th,  the 
pauper  named  therein  has  no  settlement  in  Lawrence  or  in  Lynn ; 
and  unless,  upon  other  facts,  she  has  gained  a  settlement  elsewhere, 
she  is  undoubtedly  a  state  charge. 

Her  father  acquired  a  settlement  in  Lawrence  prior  to  1859,  anc* 
she  took  a  settlement  from  him  by  derivation.  The  settlement,  how- 
ever, was  defeated  by  Sts.  1898,  c  425,  §  2,  providing  that  "  All  settle- 
ments not  fully  acquired  subsequent  to  the  first  day  of  May  eighteen 
hundred  and  sixty,  are  hereby  defeated  and  declared  to  be  lost." 

Her  father  did  not  lose  his  settlement  in  Massachusetts  by  remov- 
ing to  Michigan.  Townsendv.  Billerica,  10  Mass.  411,  413.  Can- 
ton v.  Bentley,  11  Mass.  441.  Sts.  1898,  c.  425,  §  2,  provides  that 
"  All  persons  absent  from  the  Commonwealth  of  Massachusetts  for 
ten  years  in  succession  shall  lose  their  settlement."  This  statute, 
however,  is  new  and  is  not  retroactive. 

Inasmuch  as  her  father  did  not  lose  jhis  settlement  in  Lawrence, 
she  could  not  derive  a  settlement  from  her  mother  in  Lynn.  Children 
can  only  follow  the  settlement  of  their  mother  when  the  father  has  no 
settlement  within  the  Commonwealth.     (Pub.  Sts.,  c.  83,  §  1,  cl.  2.) 

She  could  not  acquire  a  settlement  in  Lynn  by  her  residence  there 
with  her  mother  ipr  fifteen  years,  because  she  was  and  is  non  combos 
mentis. 

Upon  the  facts  as  stated  in  your  letter,  therefore,  she  is  an  unsettled 
person  and  a  charge  upon  the  Commonwealth. 
Yours  very  truly. 

HOSEA   M.  KNOWLTON, 

Attorney  General. 


THE    ATTORNEY    GENERALS    OPINIONS  1 77 


Latest  Opinion  on  Woman  Settlement. 

Commonwealth  of  Massachusetts, 

Office  of  the  Attorney-general, 

Boston,  Sept.  20,  1899. 
S.  C.  Wrightington,  Esq.,  Superintendent  of  State  Adult  Poor. 

Dear  Sir, —  Your  letter  of  Sept.  1st  requires  the  opinion  of  the 
attorney-general,  upon  facts  stated  in  the  letter,  as  to  the  settlement  of 
a  certain  pauper. 

Your  letter  states  that  he  was  born  in  Boston,  Dec.  23,  1855,  and 
consequently  became  of  age  Dec.  23,  1876.  He  never  acquired  a 
settlement  in  his  own  right.  His  father  was  born  in  New  Hampshire, 
and  came  to  Boston  in  1852,  where  he  died  Jan.  28,  1874,  never  hav- 
ing acquired  a  settlement  in  Massachusetts.  His  mother  came  to 
Boston  with  her  husband  in  1852,  and  resided  in  that  city  continuously 
as  a  married  woman  until  her  husband's  death  in  January,  1874,  and 
subsequently  as  a  widow,  in  the  same  place,  until  her  death  in  April, 
1889. 

Upon  the  facts  stated,  the  mother  of  the  pauper  was  undoubtedly 
settled  in  Boston.  If  this  settlement  was  acquired  prior  to  1876, 
when  the  pauper  became  of  age,  he  would  take  the  same  settlement 
by  derivation  from  her.  If,  however,  she  did  not  acquire  her  settle- 
ment in  Boston  until  after  1876,  he  would  derive  no  right  therefrom. 
It  is  well  settled  that  only  minors  can  gain  a  derivative  settlement 
from  their  parents.  Springfield 'v.  Wilbraham,  4  Mass.  493.  The 
answer  to  your  inquiry  depends,  therefore,  upon  the  determination 
of  the  question  when  the  mother  acquired  her  settlement  in  Boston. 

Stats.  1874,  c.  274,  s.  2,  provides  that  "Any  woman  of  the  age  of 
twenty-one  years  who  resides  in  any  place  within  this  state  for  five 
years  together,  without  receiving  relief  as  a  pauper,  shall  thereby 
gain  a  settlement  in  such  place."  By  the  third  section  of  the  same 
act,  it  is  provided  that  "  Any  unsettled  person  shall  be  deemed  to 
have  gained  a  settlement  upon  the  completion  of  the  residence  and 
taxation  herein  required,  though  the  whole  or  a  part  of  the  same 
accrues  before  the  passage  of  this  act."  It  has  been  held  that  this 
statute,  though  general  in  its  terms,  only  applied  to  unmarried 
women.  Sotnerville  v.  Boston,  120  Mass.  574.  Under  this  statute, 
therefore,  the  mother  of  the  pauper  would  not  have  begun  to  acquire 
a  settlement  until  the  death  of  her  husband  in  1874;  but,  having 
resided  as  a  widow  in  Boston  from  that  time  until  her  death  in  1889, 
she  would  have  acquired,  in  January,  1879,  under  its  provisions,  a 
settlement  in  Boston,  having  then  completed  her  five  years'  period  of 
residence  therein  as  an  unmarried  woman.  But,  in  consequence, 
doubtless,  of  the  decision  in  Sotnerville  v.  Boston,  above  referred  to, 
limiting  the  operation  of  the  statute  of  1874  to  unmarried  women,  a 
statute  was  enacted  in  1879  (Stats.  ^79,  c.  242)  providing  that  the 
provisions  of  Stats.  1878,  c.  190,  s.  1,  c.  6  (which  was  a  re-enactment 
of  Stats.  1874,  c.  274,  s.  2,  above  quoted)  should  extend  to  married 


178  APPENDIX 

women;  and,  by  sect.  2,  making  its  provisions  retroactive  as  to 
unsettled  women.  The  word  "  unsettled "  in  this  section  means 
unsettled  at  the  time  when  the  act  took  effect.  Worcester  v.  Great 
Harrington,  140  Mass.  243.     Middleborough  v.  Plympton,  140  Mass. 

325- 

If,  therefore,  the  mother  of  the  pauper  was  an  unsettled  woman 
when  the  statute  of  1879  took  effect,  she  would,  under  that  statute,  be 
deemed  to  have  acquired  a  settlement  in  Boston  when  she  had  lived 
with  her  husband  in  Boston  for  five  years,  or  in  1857.  At  that  time 
her  son,  the  pauper  in  question,  was  a  minor,  and  would,  conse- 
quently, have  a  settlement  in  Boston  by  derivation  from  his  mother. 

But  the  mother  was  not  an  unsettled  woman  when  the  statute  of 
1879  took  effect.  It  was  enacted  April  22,  1879,  and  became  law 
May  22  of  the  same  year.  The  five  years'  residence  as  a  widow 
which  settled  her  in  Boston  under  the  provisions  of  the  statute  of 
1874,  expired  in  January,  1879.  She  therefore  gained  a  settlement  in 
January,  1879,  which  was  not  affected  by  the  retroactive  provisions 
of  the  statute  of  that  year.  It  follows  that  when  the  pauper,  her  son, 
became  of  age  in  1876,  his  mother  cannot  be  said  to  have  been 
settled  in  Massachusetts,  and  he  derives  no  settlement  from  her. 

It  has  been  suggested  that  inasmuch  as  the  statute  of  1879  *s  XVi 
amendment  of  the  provisions  of  the  statute  of  1878,  the  later  statute 
is  to  be  taken  as  incorporated  into  and  made  a  part  of  the  provisions 
of  the  statute  of  1878,  so  far  as  to  be  a  part  of  the  same  statute  ;  and 
that,  consequently,  rights  under  the  statute  of  1878,  as  amended  by 
the  statute  of  1879,  would  be  acquired  as  of  the  date  of  the  passage 
of  the  statute  of  1878.  There  is  nothing  in  this  contention  worthy  of 
serious  consideration.  Sect.  2  of  the  statute  of  1879  is  not  an 
amendment  of  the  statute  of  1878  in  the  sense  that  it  re-enacts  the 
section  amended,  merely  adding  new  words  to  the  language  of  the 
former  section.  It  is  an  independent  enactment,  containing  new  pro- 
visions ;  and  those  provisions  cannot  be  law  until  they  are  enacted. 
"  Generally,  a  statute  speaks  from  the  time  it  takes  effect."  Morton, 
C.  J.,  in  Worcester  v.  Great  Barrington,  ubi  supra,  243-245.  A 
statute  affecting  settlement  laws  may  be  retroactive  in  its  provisions, 
but  it  cannot  be  taken  to  be  retroactive  as  to  the  time  when  it  takes 
effect. 

Yours  very  truly, 

(Signed)        HOSEA   M.  KNOWLTON, 

Attorney  General. 


MILITARY    AND    STATE    AID    LAWS  1 79 


MILITARY    AND    STATE   AID    LAWS. 

Chapters  372  and  374,  Acts  of  1899. 

[Chapter  372.] 

An  Act  Relative  to  Military  Aid. 

Be  it  enacted,  etc.,  as  follows  : 

Section  i.  Any  city  or  town  may  raise  money  and,  under  the 
direction  of  its  mayor  and  aldermen  or  selectmen,  may,  under  the 
following  conditions,  pay  part  thereof  as  military  aid  to,  or  expend  it 
for,  any  worthy  person  who  shall  have  the  qualifications  of  the  first 
class  of  persons  described  in  section  two,  or  of  the  second  class  de- 
scribed in  section  three,  or  of  the  third  class  described  in  section 
four,  or  of  the  fourth  class  described  in  section  five  of  this  act. 

Section  2.  Each  person  of  the  first  class  shall  be  qualified  as 
follows :  — 

First.  He  shall  have  his  settlement  under  the  pauper  laws  in  the 
city  or  town  aiding  him. 

Second.  He  shall  have  served  as  a  soldier,  sailor,  marine  or  com- 
missioned officer  in  the  army  or  navy  of  the  United  States  to  the 
credit  of  this  Commonwealth,  either  in  the  civil  war  between  the  nine- 
teenth day  of  April  in  the  year  eighteen  hundred  and  sixty-one  and 
the  first  day  of  September  in  the  year  eighteen  hundred  and  sixty-five, 
or  in  the  war  with  Spain,  which  for  the  purposes  of  this  act  is  defined 
as  having  begun  on  the  fifteenth  day  of  February  and  ended  on  the 
twelfth  day  of  August  in  the  year  eighteen  hundred  and  ninety-eight. 
Or  he  shall  have  served  in  such  army  or  navy  to  the  credit  of  any 
other  state,  between  the  nineteenth  day  of  April  in  the  year  eighteen 
hundred  and  sixty-one  and  the  eighteenth  day  of  March  in  the  year 
eighteen  hundred  and  sixty-two,  having  been  a  resident  of  this  Com- 
monwealth, actually  living  therein  at  the  time  of  his  enlistment;  or  in 
such  army  or  navy  in  one  of  the  volunteer  military  organizations  of 
this  Commonwealth  known  as  three  months'  men,  ninety  days'  men, 
or  one  hundred  days'  men,  mustered  into  the  United  States  service  in 
April,  May,  June  or  July  in  the  year  eighteen  hundred  and  sixty-one, 
or  in  April,  May,  July  or  August  in  the  year  eighteen  hundred  and 
sixty-four ;  or  he  shall  have  served  in  such  army  or  navy,  having  been 
mustered  into  the  service  of  the  United  States,  at  some  time  between 
the  first  day  of  May  and  the  first  day  of  October  in  the  year  eighteen 
hundred  and  sixty-two,  while  having  a  residence  and  actually  living 
in  this  Commonwealth,  and  while  being  a  member  of  one  of  the 
military  organizations  of  the  Massachusetts  volunteer  militia  known 
as  the  Boston  cadets,  the  Salem  cadets,  the  eighth  battery  of  light 
artillery,  or  company  B  of  the  seventh  regiment  of  infantry ;  or  he 
shall  have  served  in  such  navy,  being  one  of  the  persons  since  in- 
cluded in  the  list  of  officers,  sailors  and  marines  prepared  by  the 
adjutant  general  in  accordance  with  chapter  fifteen  of  the  resolves  of 


l8o  APPENDIX 

the  year  eighteen  hundred  and  seventy-five  and  chapter  eight  of  the 
resolves  of  the  year  eighteen  hundred  and  eighty,  and  having  been 
appointed  or  mustered  into  and  served  in  such  naval  service  of  the 
United  States  while  an  actual  resident  of  this  Commonwealth ;  or 
who  served  in  the  regular  army  of  the  United  States  in  the  civil  war, 
or  in  the  regular  army  or  navy  of  the  United  States  in  the  war  with 
Spain,  having  been  appointed  or  enlisted  therein  while  a  citizen  of 
this  Commonwealth,  having  a  residence  and  actually  residing  therein. 

Third.  He  shall  have  been  honorably  discharged  from  such  United 
States  service  and  from  all  appointments  and  enlistments  therein. 

Fourth.  He  shall  be  a  poor  and  indigent  person,  standing  in  need 
of  relief  by  reason  of  sickness  or  other  physical  disability,  who  would 
otherwise  be  entitled  to  relief  under  the  pauper  laws. 

Fifth.  He  shall  not  be,  directly  or  indirectly,  in  the  receipt  of  any 
other  state  or  military  aid,  or  any  pension  for  services  or  disabilities 
incurred  in  either  of  said  wars. 

Sixth.  He  shall  not  be  entitled,  under  the  laws  of  the  United 
States  or  under  the  rules  governing  such  institutions,  to  admission  to 
any  national  soldiers'  or  sailors'  home,  and  his  disability  must  have 
arisen  from  causes  independent  of  his  service  aforesaid,  except  in 
cases  of  applicants  for  pensions,  while  their  applications  are  pending, 
as  to  which  the  mayor  and  aldermen  or  selectmen  are  convinced  upon 
evidence,  first  reported  to  the  commissioners  of  state  aid  and  satis- 
factory to  them,  that  justice  and  necessity  require  such  aid  to  prevent 
actual  suffering,  and  in  case  of  such  unmarried  applicants  that  they 
cannot  obtain  assistance  at  a  national  soldiers'  or  sailors'  home. 

Section  3.  Each  person  of  the  second  class  shall  have  his  set- 
tlement under  the  pauper  laws  in  the  city  or  town  aiding  him,  and  be 
further  qualified  as  follows  :  —  He  shall  be  an  invalid  pensioner  and 
entitled  to  receive  state  aid  under  the  provisions  of  chapter  three 
hundred  and  one  of  the  acts  of  the  year  eighteen  hundred  and  ninety- 
four  or  of  any  act  of  the  current  year  passed  in  continuance  of  the 
whole  or  of  a  part  thereof,  whose  pension  and  state  aid  shall  be  in- 
adequate for  his  relief,  and  who  would  otherwise  receive  relief  under 
the  pauper  laws ;  but  while  actually  aided  under  such  chapter  he 
shall  not  receive  aid  under  this  act. 

Section  4.  Each  person  of  the  third  class  shall  have  all  the 
qualifications  required  to  enable  a  person  to  receive  aid  in  the  first 
class,  except  settlement  under  the  pauper  laws ;  but  in  lieu  of  such 
settlement  he  shall  be  an  actual  resident  of  the  city  or  town  aiding 
him,  and  his  residence  in  this  Commonwealth  shall  have  been  con- 
tinuous during  the  three  years  last  preceding  his  receipt  of  aid  under 
this  chapter. 

Section  5.  Each  person  of  the  fourth  class  shall  have  all  the 
qualifications  required  to  enable  a  person  to  receive  aid  in  the  second 
class,  except  settlement  under  the  pauper  laws  ;  but  in  lieu  of  such 
settlement  he  shall  be  an  actual  resident  of  the  city  or  town  aiding 
him,  and  his  residence  in  this  Commonwealth  shall  have  been  con- 
tinuous during  the  three  years  last  preceding  his  receipt  of  aid  under 
this  chapter. 

Section  6.     No  city  or  town  shall  render  aid  under  this  act  to 


MILITARY    AND    STATE    AID    LAWS  l8l 

any  person  of  the  third  or  fourth  class  without  first  obtaining  from 
the  commissioners  of  state  aid,  after  furnishing  them  with  such  evi- 
dence as  they  may  require  that  the  person  to  receive  aid  is  entitled 
thereto  as  may  be  ordered  by  the  commissioners,  an  order  fixing  the 
maximum  amount  per  month  within  which  payments  may  be  made, 
and  the  period  during  which  aid  may  be  allowed,  and  stating  such 
other  conditions  as  they  may  impose  relative  to  such  aid;  which 
order  may  be  revoked  or  modified  by  such  commissioners  by  giving 
written  notice  to  the  city  or  town  procuring  it. 

Section  7.  Aid  given  under  this  act  shall  be  entitled  "Military 
Aid,"  and  no  person  shall  receive  it  who  receives  state  aid.  No  per- 
son shall  be  compelled  to  receive  military  aid.  No  person  shall  re- 
ceive military  aid  on  account  of  his  service  in  the  war  with  Spain 
unless  he  was  enlisted  or  appointed  in  the  service  of  the  United 
States  aforesaid  after  the  fourteenth  day  of  February  and  prior  to 
the  twelfth  day  of  August  in  the  year  eighteen  hundred  and  ninety- 
eight  :  provided,  however,  that  military  aid  may  be  allowed  under 
the  limitations  of  this  act  to  or  for  volunteers  mustered  into  the  ser- 
vice of  the  United  States  in  Massachusetts  regiments  after  said 
twelfth  day  of  August  but  prior  to  the  first  day  of  January  in  the 
year  eighteen  hundred  and  ninety-nine,  who  shall  otherwise  be  quali- 
fied to  receive  the  same  under  the  terms  of  this  act.  No  person 
shall  receive  military  aid  who  deserted  from  such  service  in  either 
of  said  wars.  No  person  shall  be  eligible  to  receive  military  aid  as 
a  worthy  person  who  shall  have  been  dishonorably  discharged  from 
any  national  soldiers'  or  sailors'  home  or  from  the  soldiers'  home  in 
Massachusetts,  unless  the  commissioners  of  state  aid,  after  a  hear- 
ing, shall  decide  otherwise.  No  military  aid  shall  be  paid  to  or  for 
any  person  whose  necessity  therefor  is  caused  by  voluntary  idleness, 
or  who  is  known  to  be  in  the  practice  of  vicious  or  intemperate 
habits. 

Section  8.  Any  person  applying  for  military  aid  may  be  required 
by  the  mayor  and  aldermen  or  the  selectmen  granting  him  the  same, 
or  by  the  commissioners  of  state  aid,  as  a  condition  of  granting  mili- 
tary aid,  to  pay  over  his  pension  to  said  mayor  and  aldermen  or 
selectmen,  to  be  expended  for  his  relief,  before  he  shall  receive  such 
aid. 

No  person  shall  be  compelled  to  receive  the  relief  or  support  fur- 
nished under  this  act  in  any  almshouse  or  public  institution,  unless 
his  physical  or  mental  condition  requires  it,  but  he  may  so  receive  it 
if  he  chooses  so  to  do;  and,  except  in  such  cases,  it  shall  be  paid  to, 
or  expended  for,  those  persons  only  who  live  separately  from  persons 
receiving  support  as  paupers.  All  military  aid  shall  be  applied  solely 
for  the  benefit  of  the  person  for  whom  it  is  intended  and  no  greater 
sum  shall  be  paid  to  or  for  any  person  under  this  act  than  shall  be 
necessary  to  furnish  him  reasonable  relief  or  support;  and  no  sum 
shall  be  paid  to  or  for  any  person  competent  to  support  himself,  or  in 
receipt  of  income  or  in  ownership  of  property  sufficient  for  his  own 
support,  nor  to  or  for  any  person  more  than  is  necessary,  in  addition 
to  his  income  and  property,  for  his  personal  relief  or  support.  Mu- 
nicipal authorities  granting  aid  under  this  act  shall  from  time  to  time 


l82  APPENDIX 

after  its  original  allowance  make  such  investigation  into  the  necessi- 
ties of  the  person  aided  and  the  facts  of  his  case,  and  any  change 
thereof,  as  to  preclude  any  payment  of  aid  contrary  to  the  terms  of 
this  act. 

Section  9.  The  auditor  of  the  Commonwealth,  the  adjutant 
general,  and  some  competent  third  person  appointed  by  the  governor 
and  council,  with  a  salary  to  be  fixed  by  them,  not  exceeding  twenty- 
five  hundred  dollars  per  annum,  who  shall  devote  his  whole  time  to 
the  duties  of  his  office  and  who  shall  be  the  secretary  of  the  board, 
shall  be  a  board  of  commissioners  of  state  aid,  and  shall  perform 
the  duties  required  of  such  commissioners  under  the  laws  relating  to 
state  and  military  aid.  Said  commissioners  shall  investigate  all 
payments  of  money  under  such  laws,  so  far  as  the  interests  of  the 
Commonwealth  may  require.  Said  commissioners,  with  the  approval 
of  the  governor,  may  appoint,  as  occasion  may  require,  one  or  more 
disinterested  persons,  whose  duty  it  shall  be  to  investigate  any  claim 
or  claims  made  against  the  Commonwealth  for  reimbursement,  who 
may  examine  any  persons  receiving  relief  under  this  act  and  investi- 
gate the  reasons  therefor,  and  all  matters  relating  to  the  granting 
of  such  relief,  and  who  shall  report  their  doings  to  said  commission- 
ers. The  reasonable  expenses  of  the  commissioners  and  the 
expenses  and  compensation  of  such  disinterested  person  or  persons, 
approved  by  said  commissioners  and  allowed  by  the  governor  and 
council,  shall  be  paid  from  the  treasury  of  the  Commonwealth. 

Section  10.  When  any  sum  shall  have  been  expended  under 
and  according  to  this  act  the  full  amount  so  expended,  the  names 
of  the  persons  receiving  the  same,  and  the  names  of  the  companies 
and  regiments  or  vessels,  if  any,  in  which  they  respectively  enlisted, 
and  in  which  they  last  served,  the  sums  received  by  each,  and  the 
reasons  for  the  expenditure  in  each  case,  with  such  other  details 
as  the  commissioners  of  state  aid  may  require,  shall  be  certified 
under  oath  to  said  commissioners,  in  a  manner  approved  by 
them,  by  the  mayor,  treasurer  and  city  clerk  of  any  city,  or  by 
a  majority  of  the  selectmen  of  any  town  disbursing  the  same, 
within  ten  days  after  the  first  day  of  the  month  next  after  the 
expenditure  is  made ;  and  the  commissioners  of  state  aid  shall 
examine  the  certificates  so  made  and  shall  allow  and  indorse  upon 
the  same  such  sums  as  in  their  judgment  have  been  paid  and  re- 
ported according  to  this  act,  and  thereupon  file  the  same  with  the 
auditor.  In  the  allowance  of  said  commissioners  they  may  consider 
and  decide  upon  the  necessity  of  the  amount  paid  in  each  case,  and 
they  may  allow  any  portion  thereof  which  they  may  deem  proper  and 
lawful,  and  which,  in  cases  of  payment  to  or  for  persons  of  the  third 
or  fourth  class,  they  shall  also  find  to  have  been  made  according  to 
their  orders.  Of  the  sums  so  allowed  and  indorsed  by  the  commis- 
sioners one  half  and  no  more  of  all  payments  made  to  or  for  persons 
of  the  first  and  second  classes,  and  the  whole  of  all  payments  made 
to  or  for  persons  of  the  third  and  fourth  classes,  shall  be  reimbursed 
by  the  Commonwealth  to  the  town  or  city  expending  the  same,  on  or 
before  the  first  day  of  December  in  the  next  year  after  the  year  in 
which  the  same  have  been  paid,  but  none  of  the  expenses  attending 
the  payment  of  military  aid  shall  be  reimbursed. 


MILITARY    AND    STATE    AID    LAWS  1 83 

Sf.ction  11.  Chapter  two  hundred  and  seventy-nine  of  the  acts  of 
the  year  eighteen  hundred  and  ninety-four,  entitled  "An  Act  relative 
to  military  aid,"  is  hereby  repealed ;  but  the  provisions  of  this  act 
shall  be  construed,  so  far  as  they  are  the  same  as  those  of  existing 
laws,  as  a  continuation  thereof.  All  special  acts  and  resolves  author- 
izing the  payment  of  military  aid  to  individuals  under  said  chapter, 
which  by  the  terms  of  said  chapter  would  expire  on  the  first  day  of 
January  in  the  year  nineteen  hundred,  shall  be  continued  in  force,  so 
far  as  they  relate  to  the  payment  of  military  aid,  and  such  aid  may  be 
paid  under  them  according  to  the  terms  of  this  act,  until  the  first  day 
of  January  in  the  year  nineteen  hundred  and  five  and  no  longer : 
provided,  that  no  such  special  act  or  resolve  shall  be  so  continued  in 
force,  nor  shall  aid  be  paid  by  reason  of  the  same  if  it  would  other- 
wise expire  by  the  limitation  of  its  own  provisions. 

Section  12.  The  provisions  of  this  act  shall,  unless  sooner 
repealed,  continue  in  force  until  the  first  day  of  January  in  the  year 
nineteen  hundred  and  five  and  no  longer,  except  such  provisions  as 
relate  to  settlement  of  accounts  for  payment  of  aid  rendered  by  cities 
or  towns  previous  to  said  date,  and  to  the  reimbursement  thereof, 
which  provisions  shall  continue  in  force  one  year  only  after  said  date. 
But  the  expiration  of  this  act  shall  not  be  held  to  revive  any  act  or 
resolve  or  any  part  thereof  repealed  by  this  act.  No  special  act  or 
resolve  now  in  force  or  hereafter  passed  granting  military  aid  to 
persons  therein  named,  payable  under  this  act,  shall  continue'  in  force 
after  the  date  first  named  in  this  section,  unless  otherwise  expressly 
provided. 

Section  13.  The  soldiers'  relief  commissioner  of  the  city  of  Bos- 
ton shall,  subject  to  the  direction  of  the  board  of  aldermen  of  said 
city  as  to  the  amount  to  be  paid  to  beneficiaries,  have  and  exercise  all 
the  powers  and  duties  hereinbefore  vested  in  the  mayor  and  aldermen 
of  said  city. 

Section  14.  This  act  shall  take  effect  on  the  first  day  of  July  in 
the  year  eighteen  hundred  and  ninety-nine. 

Approved  May  18,  1899. 

[Chapter  374.] 

An  Act  Relative  to  State  Aid. 
Be  it  enacted,  etc.,  as  follows  : 

Section  i.  Any  city  or  town  may  raise  money  for  the  purposes  of 
this  act;  and  the  treasurer  thereof  may,  under  the  direction  of  the 
mayor  and  aldermen  or  the  selectmen,  under  the  following  conditions, 
pay  state  aid  to  or  expend  it  for  any  worthy  person  having  a  resi- 
dence and  actually  residing  in  such  city  or  town,  who  is  not  receiving 
aid  from  any  other  state  nor  from  any  other  city  or  town  in  this  state, 
and  who  shall  be  in  such  necessitous  circumstances  as  to  require 
further  public  assistance,  and  who  shall  belong  to  either  of  the  fol- 
lowing classes,  to  wit :  — 

First  class.     Invalid  pensioners  of  the  United  States  who  served 


184  APPENDIX 

in  the  army  or  navy  of  the  United  States  to  the  credit  of  the  state  of 
Massachusetts,  either  in  the  civil  war,  between  the  nineteenth  day 
of  April  in  the  year  eighteen  hundred  and  sixty-one  and  the  first  day 
of  September  in  the  year  eighteen  hundred  and  sixty-five,  or  in  the 
war  with  Spain,  which  for  the  purposes  of  this  act  is  defined  as  hav- 
ing begun  on  the  fifteenth  day  of  February  in  the  year  eighteen  hun- 
dred and  ninety-eight  and  ended,  except  when  otherwise  herein 
specially  limited,  on  the  twelfth  day  of  August  in  the  year  eighteen 
hundred  and  ninety-eight,  or  who  served  in  such  army  or  navy  in  the 
military  organizations  of  this  state  known  as  three  months'  men, 
ninety  days'  men,  or  one  hundred  days'  men,  mustered  into  the 
United  States  service  in  April,  May,  June  or  July  in  the  year  eigh- 
teen hundred  and  sixty-one,  or  in  April,  May,  July  or  August  in  the 
year  eighteen  hundred  and  sixty-four;  —  or  who,  having  their  resi- 
dence and  actually  residing  in  this  state  at  the  time  of  their  enlist- 
ment, served  to  the  credit  of  any  other  state  in  such  army  or  navy 
between  the  nineteenth  day  of  April  in  the  year  eighteen  hundred  and 
sixty-one  and  the  eighteenth  day  of  March  in  the  year  eighteen  hun- 
dred and  sixty-two ;  or  who  served  in  such  army  or  navy,  having  been 
mustered  into  the  service  of  the  United  States,  at  some  time  between 
the  first  day  of  May  and  the  first  day  of  October  in  the  year  eighteen 
hundred  and  sixty-two,  while  having  a  residence  and  actually  living 
in  this  Commonwealth,  and  while  being  a  member  of  one  of  the  mili- 
tary organizations  of  the  Massachusetts  volunteer  militia  known  as 
the  Boston  cadets,  the  Salem  cadets,  the  eighth  battery  of  light 
artillery,  or  Company  B  of  the  seventh  regiment  of  infantry ;  or  who 
served  in  such  navy,  being  one  of  the  persons  since  included  in  the 
list  of  officers,  sailors  and  marines,  prepared  by  the  adjutant  general 
in  accordance  with  the  provisions  of  chapter  fifteen  of  the  resolves  of 
the  year  eighteen  hundred  and  seventy-five  and  chapter  eight  of  the 
resolves  of  the  year  eighteen  hundred  and  eighty,  having  been  ap- 
pointed or  mustered  into  and  served  in  such  naval  service  of  the 
United  States  while  an  actual  resident  of  this  Commonwealth;  or 
who  served  in  the  regular  army  of  the  United  States,  either  in  the 
civil  war  or  in  the  war  with  Spain,  having  been  appointed  or  having 
enlisted  in  said  army  while  a  citizen  of  this  Commonwealth,  having 
a  residence  and  actually  residing  therein  ;  which  pensioners  have 
been  honorably  discharged  from  their  said  service  in  the  army  or 
navy,  and  from  all  appointments  and  enlistments  therein,  and  are  so 
far  disabled  by  such  service  as  to  prevent  them  from  following  their 
ordinary  occupations. 

Second  class.  Dependent  relatives  of  soldiers  or  sailors  who 
have  served  in  the  manner  and  under  the  limitations  described  for 
the  service  of  invalid  pensioners  of  the  first  class,  who,  if  not  con- 
tinuing in  the  service  of  the  United  States  awaiting  discharge  upon 
the  official  proclamation  ending  the  war  with  Spain,  or  if  not  having 
died  in  the  service  above  defined  for  invalid  pensioners,  have  been 
honorably  discharged  therefrom,  as  follows :  —  Namely,  the  wives  and 
•widowed  mothers  of  invalid  pensioners  of  the  first  class  whose  service 
was  in  the  civil  war,  and  the  widows  and  widowed  mothers  of  soldiers 
or  sailors  dying  in  such  service,  or  dying  after  their  honorable  dis- 


MILITARY    AND    STATE    AID    LAWS  1 85 

charge  therefrom,  and  the  widows,  children  and  widowed  mothers  of 
soldiers  or  sailors  who  served  in  the  war  with  Spain,  dying  in  such 
service  at  any  time  previous  to  the  date  when  said  official  proclama- 
tion was  issued,  or  dying  after  their  honorable  discharge  therefrom 
of  wounds  or  disease  incurred  in  such  service,  or  dying  while  in  re- 
ceipt of  a  pension  of  the  United  States  and  the  state  aid  of  this 
state,  and  the  wives,  children  and  widowed  mothers  of  invalid  pen- 
sioners of  the  first  class  who  served  in  the  war  with  Spain,  and  of 
soldiers  or  sailors  while  remaining  in  the  service  of  the  United 
States  in  said  war,  but  not  later  than  three  months  after  the  issue  of 
said  proclamation;  which  children  shall  not  be  more  than  fourteen 
years  of  age,  and  shall  have  been  born  prior  to  their  father's  dis- 
charge from  such  service  and  prior  to  the  date  of  issue  of  said  proc- 
lamation. 

Third  class.  Dependent  relatives  of  soldiers  or  sailors  who 
served  in  either  of  said  wars,  in  the  manner  and  under  the  limita- 
tions described  for  the  service  of  invalid  pensioners  of  the  first  class, 
who  appear  on  the  rolls  of  their  respective  regiments  or  companies 
in  the  office  of  the  adjutant  general  to  be  missing  or  to  have  been 
captured  by  the  enemy,  and  who  have  not  been  exchanged  and  have 
not  returned  from  captivity,  and  whom  the  authorities  granting  aid 
have  no  good  reason  to  believe  to  be  alive,  as  follows:  —  Namely, 
the  widows  or  wives  and  widowed  mothers  of  such  soldiers  and 
sailors  and  the  children  of  such  soldiers  and  sailors  who  would  be 
entitled  to  receive  aid  in  the  second  class  if  their  fathers  were  invalid 
pensioners  of  the  first  class  because  of  service  in  the  war  with  Spain. 

Fourth  class.  Persons  who  were  receiving  state  aid  as  dependent 
fathers  or  mothers  prior  to  the  eleventh  day  of  April  in  the  year 
eighteen  hundred  and  sixty-seven  and  were  precluded  therefrom  by 
the  provisions  of  chapter  one  hundred  and  thirty-six  of  the  acts  of 
the  year  eighteen  hundred  and  sixty-seven ;  also  the  fathers  or 
mothers,  the  fathers  being  living,  of  soldiers  or  sailors  who  served 
in  the  war  with  Spain,  in  the  manner  and  under  the  limitations 
described  for  the  service  of  invalid  pensioners  of  the  first  class,  while 
they  are  in  such  service,  or  if  they  have  died  in  such  service,  but  no 
aid  shall  be  granted  to  any  such  fathers  or  mothers  after  the  expira- 
tion of  three  months  from  the  time  of  the  issue  of  said  proclamation 
of  peace,  except  to  such  parents  of  sons  who  died  in  the  service  as 
are  receiving  aid  at  the  time  of  the  passage  of  this  act. 

No  aid  shall  be  granted  to  persons  of  this  class  first  above  named, 
nor,  after  the  expiration  of  three  months  from  the  issue  of  such 
proclamation,  to  any  others  of  this  class,  unless  in  each  case  the 
mayor  and  aldermen  or  selectmen  shall  be  satisfied,  on  evidence 
first  reported  to  the  commissioners  of  state  aid,  and  satisfactory  to 
them,  that  justice  and  necessity  require  a  continuance  of  the  aid  to 
prevent  actual  suffering. 

Section  2.  No  wife  or  widow  of  any  discharged  soldier  or  sailor 
shall  be  held  to  belong  to  either  of  the  foregoing  classes  or  shall  be 
aided  as  such  under  this  act  unless,  if  his  service  was  in  the  war  with 
Spain,  she  was  married  to  him  before  his  final  discharge  from  such 
service  and  before  the  passage  of  this  act,  and  if  his  service  was  in 


1 86  APPENDIX 

the  civil  war,  when  she  was,  if  his  wife,  married  to  him  prior  to  his 
final  discharge  from  such  service,  and  if  his  widow,  prior  to  the  ninth 
day  of  April  in  the  year  eighteen  hundred  and  eighty.  Aid  given 
under  this  act  shall  be  entitled  "  State  Aid,"  and  no  person  receiving 
it  shall  also  receive  military  aid.  The  words  "  pensioners,"  "  soldiers  " 
and  "  sailors,"  singular  or  plural,  used  in  this  act,  shall  be  held  to  in- 
clude commissioned  officers,  and  the  word  "sailor"  or  "sailors,"  shall 
be  held  to  include  marines.  No  state  aid  shall  be  paid  under  this  act 
to  or  for  any  person  of  the  first  class  to  an  amount  exceeding  three 
fourths  of  the  monthly  amount  of  his  pension,  nor  more  than  six  dol- 
lars in  any  one  month,  or  to  or  for  any  person  of  the  second,  third  or 
fourth  class  to  an  amount  exceeding  four  dollars  in  any  one  month  ; 
and  no  more  than  eight  dollars  shall  be  paid  to  or  for  all  dependent 
relatives  of  any  one  soldier  or  sailor  in  any  one  month.  No  aid  shall 
be  paid  to  or  for  any  soldier  or  sailor  on  account  of  service  in  the  war 
with  Spain,  or  to  his  dependent  relatives,  unless  he  enlisted  or  was 
appointed  in  the  service  of  the  United  States  after  the  fourteenth 
day  of  February  and  prior  to  the  twelfth  day  of  August  in  the  year 
eighteen  hundred  ninety-eight :  provided,  however,  that  state  aid  may 
be  allowed  under  the  limitations  of  this  act  to  or  for  volunteers 
mustered  into  the  service  of  the  United  States  in  Massachusetts 
regiments  after  said  twelfth  day  of  August  but  prior  to  the  first  day 
of  January  in  the  year  eighteen  hundred  and  ninety-nine,  who  shall 
otherwise  be  qualified  to  receive  the  same  under  the  terms  of  this  act, 
and  to  or  for  their  dependent  relatives.  No  aid  shall  be  paid  under 
this  act  to  or  for  any  pensioner  or  dependent  relative  when  the  neces- 
sity therefor  arises  from  the  continuance  in  vicious  or  intemperate 
habits  of  said  pensioner,  or  of  the  soldier  or  sailor  on  whose  account 
the  same  is  paid,  nor  when  there  is  reasonable  cause  to  believe  that 
such  pensioner,  soldier  or  sailor,  was  a  deserter  from  the  service  of 
the  United  States  in  either  of  the  wars  aforesaid,  or  is  wilfully  absent 
from  his  family,  neglecting  to  render  them  such  needed  assistance  as 
he  is  able  to  give. 

Section  3.  All  persons  specifically  referred  to  and  to  or  for  whom 
state  aid  is  paid  under  any  special  act  or  resolve  passed  since  the  first 
day  of  June  in  the  year  eighteen  hundred  and  seventy-nine,  or  to  or 
for  whom  state  aid  was  then  being  paid  under  any  special  act  or  re- 
solve then  repealed,  shall  be  held  to  belong  to  the  first  or  second 
class  under  this  act, —  namely,  soldiers  and  sailors  to  the  first  class, 
and  dependent  relatives  of  soldiers  and  sailors  to  the  second  class, — 
notwithstanding  the  limitations  of  such  classes ;  and  state  aid  may  be 
paid  to  or  for  such  persons  in  the  same  manner  and  with  the  same 
limitations  as  it  is  paid  to  or  for  other  persons  of  their  respective 
classes  under  this  act :  provided,  that  no  aid  shall  be  paid  to  or  for 
any  person  under  this  section  contrary  to  any  limitation  or  condition 
expressed  in  the  original  special  act  or  resolve  authorizing  state  aid 
to  be  paid  to  or  for  such  person.  All  special  acts  and  resolves  grant- 
ing state  aid  are  hereby  repealed,  except  so  far  as  they  authorize  the 
payment  of  military  aid,  as  provided  in  section  eleven  of  an  act  en- 
titled "  An  Act  relative  to  military  aid,"  of  the  acts  of  the  current  year; 
provided,  that  this  section  shall  not  be  held  to  apply  to  any  special 


MILITARY    AND    STATE    AID    LAWS  1 87 

act  or  resolve  specifically  granting  a  fixed  amount  or  an  annual  sum 
to  any  soldier  or  sailor  or  the  dependent  relative  of  any  soldier  or 
sailor  for  life  or  for  a  term  therein  specified,  and  provided  that  state 
aid  may  be  paid  under  chapter  three  hundred  and  sixty-one  of  the 
acts  of  the  year  eighteen  hundred  and  ninety-five,  subject  to  the  pro- 
visions, rules  and  limitations  of  this  act. 

Section  4.  All  aid  furnished  under  this  act  shall  be  paid  to  or 
for  the  persons  for  whom  it  is  intended,  for  their  future  benefit,  and 
no  assignment  thereof  shall  be  valid  or  recognized,  and  it  shall  not 
be  subject  to  trustee  process.  No  back  state  aid  shall  be  paid.  No 
greater  sum  shall  be  paid  to  or  for  any  person  under  this  act  than 
shall  be  necessary  to  furnish  such  person  reasonable  relief ;  and  no 
aid  shall  be  paid  under  its  provisions  to  or  for  any  person  competent 
to  support  himself  or  herself,  or  in  receipt  of  income  or  in  ownership 
of  property  sufficient  for  his  or  her  own  support,  nor  to  or  for  any 
person  more  than  is  necessary  in  addition  to  the  income  and  property 
of  such  person  for  his  or  her  personal  relief;  and  no  aid  shall  be 
paid  under  this  act  to  any  person  not  in  such  necessitous  circum- 
stances as  to  require  further  public  assistance.  No  aid  shall  be  paid 
under  this  act  to  or  for  any  person  convicted  of  any  criminal  offence, 
unless  or  until  the  municipal  authorities  and  the  commissioners  _  of 
state  aid  otherwise  determine.  No  person  shall  be  eligible  to  receive 
aid  under  this  act  as  a  worthy  person  who  shall  have  been  dishonor- 
ably discharged  from  any  national  soldiers'  or  sailors'  home,  or  from 
the  soldiers'  home  in  Massachusetts,  unless  the  commissioners  of 
state  aid,  after  a  hearing,  shall  decide  otherwise. 

Section  5.  Persons  making  application  for  aid  in  any  city  or 
town  under  this  act  shall,  as  a  basis  for  the  first  payment  thereof,  state 
in  writing,  under  oath,  the  age  and  residence  of  the  person  for  whom 
such  aid  is  sought,  the  relation  of  the  applicant  for  aid  to  the  person 
who  rendered  the  service  for  which  aid  is  asked,  the  company  and 
regiment  or  the  vessel,  if  any,  in  or  to  which  the  officer,  soldier  or 
sailor  enlisted  or  was  appointed,  and  in  which  he  last  served;  the 
date  and  place  of  such  enlistment,  when  known ;  the  duration  of 
such  service  and  the  reason  upon  which  the  claim  for  aid  is  founded ; 
and  shall  furnish  such  official  certificates  of  record,  evidence  of  en- 
listment, service  and  discharge,  as  may  be  required.  Municipal 
authorities  granting  to  such  applicant  any  subsequent  aid  shall  from 
time  to  time  make  such  investigation  'into  the  necessities  of  said 
applicant  and  the  facts  of  the  case  as  to  preclude  any  payment 
thereof  contrary  to  the  terms  of  this  act.  The  original  papers  in 
each  case  shall  be  filed  with  the  commissioners  of  state  aid.  It 
shall  be  the  duty  of  the  commissioners  to  furnish  from  time  to  time 
to  each  city  and  town  a  sufficient  number  of  blank  forms  for  the 
use  of  applicants  for  aid  under  this  act. 

Section  6.  The  commissioners  of  state  aid  shall  constitute  a 
board  of  appeal  for  invalid  pensioners,  to  decide  all  disputed  ques- 
tions relating  to  claims  for  aid  arising  between  such  pensioners  and 
the  municipal  authorities,  under  this  act.  Their  decisions  shall  be 
final  upon  the  points  in  question.  Said  commissioners  may,  upon 
appeals,  decide  or  refuse  to  decide  upon  the  necessity  of  the  claimant 


1 88  APPENDIX 

for  the  aid ;  and  if  they  shall  decide  upon  that  question,  and  decide 
that  he  is  entitled  to  aid  under  this  act,  they  may  authorize  its 
monthly  payment  to  him  according  to  this  act,  under  such  limitations 
as  they  may  impose,  for  a  term  not  exceeding  one  year,  but  not  after 
this  act  shall  become  void.  Said  commissioners  shall  investigate  all 
payments  of  state  aid  under  this  act  so  far  as  the  interests  of  the 
Commonwealth  may  require.  They  may,  with  the  consent  of  the 
governor,  appoint,  as  occasion  may  require,  one  or  more  disinter- 
ested persons,  whose  duty  it  shall  be  to  investigate  any  claim  or 
claims  made  against  the  Commonwealth  for  reimbursement  under 
this  act,  who  may  examine  any  persons  to  or  for  whom  state  aid  has 
been  paid  under  this  act,  and  investigate  the  reasons  therefor  and  all 
matters  relating  to  the  granting  of  such  aid,  and  shall  report  his  or 
their  doings  to  said  commissioners.  The  reasonable  expenses  of  the 
commissioners  and  the  expenses  and  compensation  of  any  such  dis- 
interested person,  approved  by  said  commissioners  and  allowed  by 
the  governor  and  council,  shall  be  paid  from  the  treasury  of  the 
Commonwealth. 

Section  7.  When  any  sum  shall  have  been  expended  under  and 
according  to  this  act  the  full  amount  so  expended,  the  names  of  the 
persons  aided,  and  the  classes  to  which  they  severally  belong,  and 
the  several  sums  paid  to  or  for  each  person,  and  the  reasons  for  the 
expenditure  in  each  case,  and  the  names  of  the  persons  on  account 
of  whose  services  the  aid  was  granted,  and  the  names  of  the  reg- 
iments and  vessels,  if  any,  in  which  they  respectively  enlisted  or  to 
which  they  were  appointed,  and  in  which  they  last  served,  and  the 
relationship  of  each  dependent  relative  aided  to  the  person  on  ac- 
count of  whose  services  the  aid  was  granted,  with  such  other  details 
as  the  commissioners  of  state  aid  may  require,  shall  be  certified 
under  oath  to  said  commissioners  in  a  manner  approved  by  them,  by 
the  mayor,  treasurer  and  city  clerk  of  any  city  or  by  a  majority  of  the 
selectmen  of  any  town  disbursing  the  same,  within  ten  days  after 
the  first  day  of  the  month  next  after  the  expenditure  is  made  ;  and  the 
commissioners  of  state  aid  shall  examine  the  certificates  so  made,  and 
shall  allow  and  endorse  upon  the  same  such  sums  as  in  their  judg- 
ment have  been  paid  and  reported  according  to  this  act,  and  transmit 
the  same  to  the  auditor.  In  the  allowance  of  said  commissioners 
they  may  consider  and  decide  upon  the  necessity  of  the  amount  paid 
in  each  case,  and  they  may  allow  any  part  thereof  which  they  may 
deem  proper  and  lawful,  but  they  shall  allow  and  endorse  any  sums 
which  they  have  specifically  authorized  to  be  paid  under  and  accord- 
ing to  their  decisions,  made  as  provided  for  by  section  six  of  this  act. 
The  sums  legally  paid  as  aforesaid  and  so  allowed  and  endorsed  by 
said  commissioners  shall  be  reimbursed  from  the  treasury  of  the 
Commonwealth  to  the  several  cities  and  towns  expending  the  same, 
on  or  before  the  first  day  of  December  in  the  year  next  after  the 
year  in  which  the  same  have  been  paid.  But  none  of  the  expenses 
attending  the  payment  of  state  aid  shall  be  reimbursed. 

Section  8.  The  provisions  of  this  act  shall,  unless  sooner  re- 
pealed, continue  in  force  until  the  first  day  of  January  in  the  year 
nineteen  hundred  and  five,  and  no  longer,  and  so  far  as  they  are  the 


MILITARY    AND    STATE    AID    LAWS  1 89 

same  as  those  of  existing  laws  they  shall  be  construed  as  a  continua- 
tion thereof:  provided,  however,  that  such  provisions  of  this  act  as 
relate  to  the  settlement  of  accounts  for  payment  of  aid  rendered  by 
cities  and  towns  previous  to  said  date,  and  to  reimbursement  there- 
for, shall  continue  in  force  one  year  and  no  longer  after  said  date. 
No  special  act  or  resolve  hereafter  passed  granting  state  aid  to  per- 
sons therein  named,  or  their  dependent  relatives,  shall  continue  in 
force  after  the  date  first  named  in  this  section,  unless  otherwise  ex- 
pressly provided.  But  the  expiration  of  this  act  shall  not  be  held  to 
revive  any  act  or  resolve,  or  any  part  thereof,  repealed  by  this  act. 

Section  9.  Sections  three,  four,  five,  six  and  seven  of  chapter 
five  hundred  and  sixty-one  of  the  acts  of  the  year  eighteen  hundred 
and  ninety-eight  are  hereby  repealed:  provided,  however,  that  if  any 
persons  to  or  for  whom  state  aid  may  be  paid  under  said  chapter 
are  not  eligible  therefor  under  the  above  provisions  of  this  act,  or 
are  eligible  to  receive  a  greater  amount  than  is  herein  provided, 
state  aid  may  be  paid  to  or  for  such  persons  under  the  provisions 
and  limitations  of  said  chapter,  until,  but  not  after,  the  expiration  of 
three  months  after  the  issue  of  the  proclamation  of  peace  at  the 
termination  of  the  war  with  Spain;  but  no  aid  shall  be  paid  under 
this  act  to  or  for  persons  while  they  are  aided  under  said  chapter, 
and  applications  for  aid  to  such  persons,  returns  by  municipal  offi- 
cers relating  thereto,  and  reimbursement  by  the  Commonwealth  of 
amounts  paid  for  such  aid,  shall  be  made  under  the  same  terms  and 
limitations  as  are  provided  in  case  of  aid  furnished  under  said  chap- 
ter. Chapter  three  hundred  and  one  of  the  acts  of  the  year  eighteen 
hundred  and  ninety-four  is  hereby  repealed,  but  the  provisions  of 
this  act  so  far  as  they  are  the  same  as  those  of  that  chapter  shall  be 
construed  as  a  continuance  thereof,  and  settlement  of  accounts  and 
reimbursement  of  cities  and  towns  for  aid  furnished  before  this  act 
shall  take  effect,  which  under  existing  laws  are  to  be  made  according 
to  the  provisions  and  limitations  of  that  chapter,  shall  be  so  made, 
notwithstanding  this  act;  and  provided, further,  that  the  provisions 
thereof  referred  to  in  said  chapter  five  hundred  and  sixty-one  of  the 
acts  of  the  year  eighteen  hundred  and  ninety-eight  shall  continue  in 
force  so  far  as  may  be  necessary  to  carry  into  effect  the  provisions 
of  this  section. 

Section  10.  The  soldiers'  relief  commissioner  of  the  city  of 
Boston  shall,  subject  to  the  direction  of  the  board  of  aldermen  of 
said  city  as  to  the  amount  to  be  paid  to  beneficiaries,  have  and  exer- 
cise the  powers  and  perform  the  duties  hereinbefore  vested  in  the 
mayor  and  aldermen  of  said  city. 

Section  ii.  This  act  shall  take  effect  on  the  first  day  of  July  in 
the  year  eighteen  hundred  and  ninety-nine. 

Approved  May  18,  1899. 


I9O  APPENDIX 


THE  SETTLEMENT  LAW  OF  i860. 

Chapter  69  of  the  General  Statutes,  which  was  the  law  of  civil  settlements 
in  1S65. 

Legal  settlements  may  be  acquired  in  any  city  or  town,  so  as  to 
oblige  such  place  to  relieve  the  persons  acquiring  the  same  in  case 
they  are  poor,  and  stand  in  need  of  relief,  in  the  manner  following, 
and'  not  otherwise,  namely :  — 

First.  A  married  woman  shall  follow  and  have  the  settlement  of 
her  husband,  if  he  has  any  within  the  State ;  otherwise  her  own  at 
the  time  of  marriage,  if  she  then  had  any,  shall  not  be  lost  or  sus- 
pended by  the  marriage. 

Second.  Legitimate  children  shall  follow  and  have  the  settlement 
of  their  father,  if  he  has  any  within  the  State,  until  they  gain  a  settle- 
ment of  their  own;  but,  if  he  has  none,  they  shall,  in  like  manner, 
follow  and  have  the  settlement  of  their  mother  if  she  has  any. 

Third.  Illegitimate  children  shall  follow  and  have  the  settlement 
of  their  mother  at  the  time  of  their  birth,  if  she  then  has  any  within 
the  State;  but  neither  legitimate  nor  illegitimate  shall  gain  a  settle- 
ment by  birth  in  the  place  where  they  may  be  born,  if  neither  of  their 
parents  then  has  a  settlement  therein. 

Fourth.  Any  person  at  the  age  of  twenty-one  years,  being  a  citi- 
zen of  this  or  any  other  of  the  United  States,  and  having  an  estate 
of  inheritance  or  freehold  in  any  place  within  the  State,  and  living  on 
the  same  three  years  successively,  shall  thereby  gain  a  settlement  in 
such  place. 

Fifth.  Any  person  of  the  age  of  twenty-one  years,  being  a  citizen 
of  this  or  any  other  of  the  United  States,  and  having  an  estate  the 
principal  of  which  shall  be  set  at  two  hundred  dollars,  or  the  income 
at  twelve  dollars,  in  the  valuation  of  estates  made  by  assessors,  and 
being  assessed  for  the  same  to  State,  city,  county,  or  town  taxes,  for 
five  years  successively,  in  the  place  where  he  dwells  and  has  his 
home,  shall  thereby  gain  a  settlement  therein. 

Sixth.  Any  person  being  chosen  and  actually  serving  one  whole 
year  in  the  office  of  clerk,  treasurer,  selectman,  overseer  of  the  poor, 
assessor,  constable,  or  collector  of  taxes,  in  any  place  shall  thereby 
gain  a  settlement  therein.  For  this  purpose  a  year  shall  be  consid- 
ered as  including  the  time  between  the  choice  of  such  officers  at  one 
annual  meeting  and  the  choice  at  the  next  annual  meeting,  whether 
more  or  less  than  a  calendar  year. 

Seventh.  Every  settled  ordained  minister  of  the  gospel  shall  be 
deemed  to  have  acquired  a  legal  settlement  in  the  place  wherein  he  is 
or  may  be  settled  as  a  minister. 

Eighth.  Any  person  admitted  an  inhabitant  by  any  place,  at  a 
legal  meeting,  held  under  a  warrant  containing  an  article  for  that  pur- 
pose, shall  thereby  acquire  a  settlement  therein. 

Ninth.  Any  citizen  of  this  or  any  other  of  the  United  States, 
dwelling  and  having  his  home  in  any  unincorporated  place  at  the 


THE    SETTLEMENT    LAW    OF    i860  I9I 

time  it  is  incorporated  into  a  town,  shall  thereby  acquire  a  legal  set- 
tlement therein. 

Tenth.  Upon  the  division  of  a  city  or  town,  every  person  having 
a  legal  settlement  therein,  but  being  absent  at  the  time  of  division 
and  not  having  acquired  a  legal  settlement  elsewhere,  shall  have  his 
legal  settlement  in  that  place  wherein  his  last  dwelling-place  or  home 
happens  to  fall  upon  such  division ;  and  when  a  new  city  or  town  is 
incorporated,  composed  of  a  part  of  one  or  more  incorporated  places, 
every  person  legally  settled  in  the  places  of  which  such  new  city  or 
town  is  so  composed,  and  who  actually  dwells  and  has  his  home 
within  the  bounds  of  such  new  city  or  town  at  the  time  of  its  incor- 
poration, shall  thereby  acquire  a  legal  settlement  in  such  new  place  ; 
provided  that  no  person  residing  in  that  part  of  a  place  which  upon 
such  division  shall  be  incorporated  into  a  new  city  or  town,  having  no 
legal  settlement  therein,  shall  acquire  any  by  force  of  such  incorpora- 
tion only;  nor  shall  such  incorporation  prevent  his  acquiring  a  set- 
tlement therein,  within  the  time  and  by  the  means  by  which  he  would 
have  gained  it  there  if  no  such  division  had  been  made. 

Eleventh.  A  minor  who  serves  an  apprenticeship  to  a  lawful 
trade  for  the  space  of  four  years  in  any  place,  and  actually  sets  up 
such  trade  therein  within  one  year  after  the  expiration  of  said  term, 
being  then  twenty-one  years  old,  and  continues  there  to  carry  on  the 
same  for  five  years,  shall  thereby  gain  a  settlement  in  such  place  ; 
but  being  hired  as  a  journeyman  shall  not  be  considered  as  setting  up 
a  trade. 

Twelfth.  Any  person  of  the  age  of  twenty-one  years,  being  a 
citizen  of  this  or  any  other  of  the  United  States,  who  resides  in  any 
place  within  this  State  for  ten  years  together,  and  pays  all  State, 
county,  city,  or  town  taxes,  duly  assessed  on  his  poll  or  estate  for  any 
five  years  within  said  time,  shall  thereby  gain  a  settlement  in  such 
place. 

No  person  who  had  begun  to  acquire  a  settlement  by  the  laws  in 
force  at  or  before  the  time  when  the  preceding  section  took  effect,  in 
any  of  the  ways  in  which  time  is  prescribed  for  a  residence,  or  for  the 
continuance  or  succession  of  any  other  act,  shall  be  prevented  or  de- 
layed by  the  provisions  of  the  preceding  section  ;  but  he  shall  acquire 
a  settlement  by  a  continuance  or  succession  of  the  same  residence  or 
other  act  in  the  same  time  and  manner  as  if  the  former  laws  had  con- 
tinued in  force.  Every  legal  settlement  shall  continue  till  it  is  lost  or 
defeated  by  acquiring  a  new  one  within  this  State,  and  upon  acquir- 
ing such  new  settlement  all  former  settlements  shall  be  defeated  and 
lost. 

This  enactment  came  in  force  June  1,  1S60. 


The  First  Military  Settlement  Law. 

First.  Any  person  who  shall  have  been  duly  enlisted  and  mus- 
tered into  the  military  or  naval  service  of  the  United  States  as  a  part 
of  the  quota  of  any  city  or  town  in  this  Commonwealth,  under  any 
call  of  the  President  of  the   United  States,  during  the  recent  civil 


I92  APPENDIX 

war,  and  who  shall  have  continued  in  such  service  for  a  term  not  less 
than  one  year,  or  who  shall  have  died  or  become  disabled  from 
wounds  or  diseases  received  or  contracted  while  engaged  in  such  ser- 
vice, or  while  a  prisoner  in  the  hands  of  the  enemy,  and  the  wife  or 
widow  and  minor  children  of  such  person,  shall  be  deemed  thereby 
to  have  acquired  a  settlement  in  such  city  or  town;  and  all  rights, 
duties  and  liabilities  pertaining  to  such  settlement,  as  set  forth  in 
chapters  sixty-nine  and  seventy  and  in  section  forty-nine  of  chapter 
seventy-one  of  the  General  Statutes,  shall  attach  thereto,  provided 
such  person  was,  at  the  time  of  his  enlistment,  of  the  age  of  twenty- 
one  years,  an  inhabitant  of  said  city  or  town,  and  had  resided  therein 
for  six  months  next  previous  to  the  time  of  his  being  mustered  into 
said  service. 

Second.  Any  person  enlisted,  mustered  and  serving  as  part  of 
the  quota  of  any  city  or  town  as  set  forth  in  the  first  section  of  this 
act,  but  who  shall  not  be  entitled  to  a  settlement  therein  by  reason 
of  the  want  of  age  or  residence  required  by  said  section,  shall,  never- 
theless, be  entitled  for  himself,  his  wife  or  widow,  and  minor  children, 
to  relief  and  support  in  any  city  or  town,  if  at  any  time  they  should 
fall  into  distress  therein,  and  stand  in  need  of  such  relief  or  support; 
and  such  city  or  town  shall  not  send  such  person,  nor  his  wife  or 
widow,  nor  his  minor  children,  to  any  State  almshouse  nor  remove 
them  to  any  other  place  nor  recover  the  expense  of  their  relief  from 
any  other  city  or  town  nor  receive  the  same  from  the  Commonwealth  ; 
and  if  any  city  or  town  shall  cause  any  person,  so  entitled  to  relief 
therein,  to  be  sent  to  any  State  almshouse,  or  removed  to  any  other 
place,  such  city  or  town  shall  be  liable  in  an  action  of  tort  for  all  ex- 
penses of  their  relief  and  support  incurred  in  such  almshouse,  or  by 
any  other  city  or  town.  But  otherwise  than  as  above  provided,  said 
city  or  town  shall  not  be  liable  to  any  other  city  or  town,  nor  to  the 
Commonwealth,  for  the  expenses  of  any  relief  or  support  furnished 
to  such  person,  or  to  his  wife,  widow  or  minor  children,  in  such  other 
place,  or  in  a  State  almshouse. 

Third.  The  provisions  of  this  act  shall  not  apply  to  any  person 
who  shall  have  enlisted  and  received  a  bounty  for  such  enlistment,  in 
more  than  one  town,  unless  the  second  enlistment  was  made  after  an 
honorable  discharge  from  the  first  term  of  service,  nor  to  any  person 
who  shall  have  been  guilty  of  wilful  desertion,  or  who  shall  have  left 
the  service  otherwise  than  by  reason  of  disability  or  an  honorable 
discharge. 

Approved  May  13,  1865. 


Chapter  328,  Acts  of  1868. 

Repeal  of  Naturalization.     Removal.     Previous  Residence  of  Soldiers. 

Section  1.  Hereafter,  any  person  of  the  age  of  twenty-one  years, 
having  the  other  qualifications  mentioned  in  the  fourth,  fifth,  ninth 
and  twelfth  clauses  of  the  first  section  of  chapter  sixty-nine  of  the 
General  Statutes,  shall  be  deemed  to  have  thereby  gained  a  settle- 


THE    SETTLEMENT    LAW    OF    i860  1 93 

ment  as  therein  provided,  although  not  a  citizen  of  this  or  any  other 
of  the  United  States. 

Section  2.  If  any  person,  actually  becomes  chargeable  as  a  pauper 
to  any  city  or  town  in  which  he  has  a  settlement,  has  a  settlement 
subsequently  acquired  in  any  place  without  this  Commonwealth,  the 
overseers  of  the  poor  in  such  city  or  town  may  cause  him  to  be  re- 
moved to  said  place  of  subsequent  settlement,  by  a  written  order 
directed  to  any  person  therein  designated,  who  may  execute  the 
same. 

Section  3.  Section  one  of  chapter  two  hundred  and  thirty  of  the 
year  eighteen  hundred  and  sixty-live,  is  hereby  amended,  by  striking 
from  the  end  thereof  the  words,  "and  had  resided  therein  for  six 
months  next  previous  to  the  time  of  his  being  mustered  into  said  ser- 
vice," and  by  inserting  the  word  "and"  before  the  words  "an  in- 
habitant," in  the  last  clause  left  remaining  in  said  section. 

Approved  June  9,  1868. 


Chapter  392,  Acts  of  1870. 

First  Woman  Settlement  Law.     Loss  of Settlement  before  1794.     Amendment 
^/"  1865  Military  Settlement  Law. 

Section  1.  Any  unmarried  woman  of  the  age  of  twenty-one  years 
who  shall  hereafter  reside  in  any  place  within  this  State  for  ten  years 
together  without  receiving  relief  as  a  pauper  or  being  convicted  of  a 
crime,  shall  thereby  gain  a  settlement  in  such  place. 

Section  2.  All  settlements  acquired  by  virtue  of  any  provision  of 
law  in  force  prior  to  the  eleventh  day  of  February,  in  the  year  one 
thousand  seven  hundred  and  ninety-four,  except  where  the  existence 
of  such  settlement  prevented  a  subsequent  acquisition,  are  hereby 
declared  defeated  and  lost. 

Section  3.  Any  person  who  shall  have  been  duly  enlisted  and 
mustered  into  the  military  or  naval  service  of  the  United  States,  as  a 
part  of  the  quota  of  any  city  or  town  in  this  Commonwealth,  under 
any  call  of  the  President  of  the  United  States,  during  the  recent  Civil 
War,  and  who  shall  have  continued  in  such  service  for  a  term  not 
less  than  one  year,  or  who  shall  have  died  or  become  disabled  from 
wounds  or  disease  received  or  contracted  while  engaged  in  such  ser- 
vice, or  while  a  prisoner  in  the  hands  of  the  enemy,  and  the  wife  or 
widow  and  the  minor  children  of  such  person  shall  be  deemed  thereby 
to  have  acquired  a  settlement  in  such  city  or  town. 

Section  4.  The  provisions  of  the  preceding  section  shall  not 
apply  to  any  person  who  shall  have  enlisted  and  received  a  bounty 
for  such  enlistment  in  more  than  one  town,  unless  the  second  enlist- 
ment was  made  after  an  honorable  discharge  from  the  first  term  of 
ser.ice,  nor  to  any  person  who  shall  have  been  proved  guilty  of  wilful 
dest-rtion,  or  to  have  left  the  service  otherwise  than  by  reason  of  dis- 
ability or  an  honorable  discharge. 

Section  5.  Any  person  who  would  otherwise  be  entitled  to  a 
settlement  under  section  three  of  this  act,  but  who  was  not  a  part  of 


194  APPENDIX 

the  quota  of  any  city  or  town,  shall,  if  he  served  as  a  part  of  the 
quota  of  this  Commonwealth,  be  deemed  to  have  acquired  a  settle- 
ment in  the  city  or  town  where  he  actually  resided  at  the  time  of  his 
enlistment. 

Section  6.  Chapter  two  hundred  and  thirty  of  the  acts  of  the  year 
eighteen  hundred  and  sixty-five,  and  section  three  of  chapter  three 
hundred  and  twenty-eight  of  the  year  eighteen  hundred  and  sixty- 
eight,  are  hereby  repealed,  saving  all  acts  done,  and  all  proceedings 
commenced  under  the  same. 

Approved  June  22,  1870. 


Chapter  379,  Acts  of  1871. 

Naturalization  Law  Retroactive.     Amendments  of  1870  Military  Settlement 
Law  and  of  1794  Loss  of  Settlement  Law. 

Section  1.  Chapter  three  hundred  and  twenty-eight  of  the  acts  of 
the  year  eighteen  hundred  and  sixty-eight  is  hereby  amended  in  the 
first  section  by  adding  thereto  the  words,  "whether  such  qualification 
shall  have  been  acquired  before  or  after  the  enactment  hereof." 

Section  2.  Chapter  three  hundred  and  ninety-two  of  the  acts  of 
the  year  eighteen  hundred  and  seventy  is  hereby  amended,  in  the 
third  section,  by  adding  after  the  words  civil  war  "or  duly  assigned 
as  a  part  of  the  quota  thereof,  after  having  been  enlisted  and  mus- 
tered into  such  service." 

Section  3.  Whenever  a  settlement  acquired  by  marriage  has  been 
defeated  by  virtue  of  the  provisions  of  the  second  section  of  chapter 
three  hundred  and  ninety-two  of  the  acts  of  the  year  eighteen  hun- 
dred and  seventy,  the  former  settlement  of  the  wife,  if  not  defeated 
by  the  same  provisions,  shall  be  deemed  to  have  been  thereby  revived. 

Section  4.     This  act  shall  take  effect  on  the  first  day  of  July  next. 

Approved  May  26,  1871. 


Chapter  274,  Acts  of  1874. 

The  1874  Amendments. 
An  Act  for  the  more  Efficient  Relief  of  the  Poor. 

Section  1.  Any  person  of  the  age  of  twenty-one  years  who  resides 
within  this  State  for  five  years  together  and  pays  all  State,  county, 
city  or  town  taxes  duly  assessed  on  his  poll  or  estate  for  any  three 
years  within  that  time  shall  thereby  gain  a  settlement  in  such  place. 

Section  2.  Any  woman  of  the  age  of  twenty-one  years  who  resides 
in  any  place  within  this  State  for  five  years  together  without  receiv- 
ing relief  as  a  pauper  shall  thereby  gain  a  settlement  in  such  place. 
The  first  section  of  the  three  hundred  and  ninety-second  chapter  of 
the  acts  of  eighteen  hundred  and  seventy  is  hereby  repealed. 

Section  3.     No  existing  settlement  shall  be  changed  by  any  pro- 


THE    SETTLEMENT    LAW    OF    i860  1 95 

vision  of  this  act  unless  the  entire  residence  and  taxation  required 
accrues  after  its  passage  ;  but  any  unsettled  person  shall  be  deemed 
to  have  gained  a  settlement  upon  the  completion  of  the  residence  and 
taxation  herein  required,  though  the  whole  or  a  part  of  the  same  ac- 
crues before  the  passage  of  this  act. 

Section  4.  The  provisions  of  this  act  shall  not  apply  to  any 
person  who  at  the  date  of  its  passage  is  an  inmate  of  either  of  the 
State  lunatic  hospitals,  the  asylum  for  the  insane  or  the  State  alms- 
house at  Tewksbury,  the  State  workhouse,  or  the  State  primary 
school,  until  such  person  has  been  duly  discharged  from  said  institu- 
tion. 

Approved  May  28,  1874. 


Chapter  183,  Acts  ok  1877. 

The  State  Temporary  Aid  Law. 

SECTION  I.  Any  city  or  town  through  its  authorities,  having 
charge  of  the  execution  of  the  laws  for  the  maintenance  of  the 
poor,  may,  if  such  authorities  deem  it  for  the  public  interest,  fur- 
nish temporary  aid  to  poor  persons  found  within  its  limits,  having 
no  settlement  within  the  Commonwealth,  and  the  expense  thereby 
incurred,  after  notice  has  been  sent  as  hereinafter  provided,  shall  be 
repaid  from  the  treasury  of  the  Commonwealth  to  such  city  or  town : 
provided,  that  said  authorities  shall  give  notice  by  mail  to  the  general 
agent  of  State  charities,  who  in  person  or  by  one  of  his  assistants 
shall  examine  the  case  and  direct  the  continuance  of  such  aid,  or 
removal  to  the  State  almshouse  or  to  some  place  outside  the  Com- 
monwealth, either  before  or  after  removal  to  the  State  almshouse,  in 
accordance  with  existing  laws,  and,  provided,  also,  that  except  in 
cases  of  sick  State  poor,  such  aid  shall  not  be  furnished  at  one  time 
for  a  longer  period  than  four  weeks  or  to  a  greater  amount  than  one 
dollar  per  week  for  each  person,  or  five  dollars  a  week  for  each 
family,  and  provided,  also,  that  all  claims  of  cities  and  towns  against 
the  Commonwealth,  for  furnishing  aid  under  the  provisions  of  this 
act,  shall  be  rendered  in  detail  and  shall  be  approved  by  the  general 
agent  of  State  charities  before  the  same  shall  be  paid. 

Section  2.  Nothing  contained  in  this  act  shall  be  construed  to 
alter  or  repeal  any  of  the  provisions  of  law  in  regard  to  the  sick 
State  poor,  or  persons  sick  with  contagious  diseases. 

Approved  May  4,  1877. 


Chatter  190,  Acts  of  1S7S. 

Chapter  190,  acts  of  1878,  is  substantially  chapter  83  of  Public 
Statutes,  and  is  printed  before  division  one  of  this  work.  With  the 
amendments  of  1898,  this  is  the  present  settlement  law,  with  the  ex- 
ception of  section  2,  chapter  242,  acts  of  1879,  next  to  be  cited, 
which  extended  the  right  of  settlement  to  married  women. 


96  APPENDIX 


Chapter  242,  Acts  of  1879. 

Provides  for  Reimbursement  of  Aid  by  the  Poor  and  for  Settlement  for 
Married  Women. 

Section  1.  Section  one  of  chapter  one  hundred  and  ninety  of  the 
acts  of  eighteen  hundred  and  seventy-eight  is  hereby  amended  by 
striking  out,  in  the  sixth  clause  thereof,  the  words  "without  receiv- 
ing relief  as  a  pauper,"  and  by  adding  at  the  end  of  the  section  the 
words  following  :  provided,  however,  that  nothing  in  this  section 
shall  be  construed  to  give  to  any  person  the  right  to  acquire  a  settle- 
ment, or  be  in  process  of  acquiring  a  settlement  while  receiving  relief 
as  a  pauper,  unless  within  five  years  from  the  time  of  receiving  such 
relief  he  shall  reimburse  the  cost  thereof  to  the  city  or  town  furnish- 
ing the  same. 

Section  2.  The  provisions  of  said  sixth  clause  shall  be  held  to 
apply  to  married  women  who  have  not  a  settlement  derived  by  mar- 
riage under  the  provisions  of  the  first  clause,  and  to  widows ;  and  a 
settlement  thereunder  shall  be  deemed  to  have  been  gained  by  any 
unsettled  woman  upon  the  completion  of  the  term  of  residence 
therein  mentioned,  although  the  whole  or  a  part  of  the  same  accrues 
before  the  passage  of  this  act. 

Approved  April  22,  1879. 


Chapter  188,  Acts  of  1881. 

Non-pauperization  by  Support  in  Public  Institutions. 

Section  1.  No  person  in  this  Commonwealth,  actually  supporting 
himself  and  his  family,  shall  be  deemed  or  designated  as  a  pauper 
because  of  the  commitment  of  his  wife  or  minor  child  or  other 
relative  to  any  lunatic  hospital,  or  other  institution  of  charity,  reform 
or  correction,  by  order  of  a  Court  or  magistrate,  and  his  inability  to 
maintain  them  therein :  but  nothing  herein  contained  shall  release 
him  from  his  present  liability  for  the  support  of  said  dependent,  if 
possessed  of  sufficient  means. 

Approved  April  6,  1881. 


Chapter  113,  Acts  of  1882. 

Recovery  by   Towns  fro?n  Relatives  of  Ability. 

Section  1.  Any  city  or  town  which  incurs  expense  for  the  sup- 
port of  a  pauper  having  a  settlement  therein  may  recover  the  same 
against  said  person,  his  executors  or  administrators,  in  an  action  for 
money  paid,  laid  out  and  expended  for  his  use. 

Approved  March  27,  1882. 


THE    SETTLEMENT    LAW    OF    i860  1 97 

Chapter  210,  Acts  of  1884. 

Punishment  for  ATon-support. 

Section  1.  Section  four  of  chapter  two  hundred  and  seventy  of 
the  acts  of  the  year  eighteen  hundred  and  eighty-two  is  herebv 
amended  so  as  to  read  as  follows: — Whoever  unreasonably  neg- 
lects to  provide  for  the  support  of  his  minor  child  shall  be  punished 
by  a  fine  not  exceeding  twenty  dollars,  or  by  imprisonment  not  ex- 
ceeding six  months.  All  fines  imposed  under  this  section  may  in 
the  discretion  of  the  Court  be  paid  in  whole  or  in  part  to  the  town, 
city,  corporation,  society  or  person  actually  supporting  such  minor 
child  at  the  time  of  making  the  complaint. 

Section  2.     This  act  shall  take  effect  upon  its  passage. 

Approved  April  30,  1884. 

Chapter  150,  Acts  of  1886. 

Section  1.  No  person  shall  be  ineligible  for  the  office  of  overseer 
of  the  poor  by  reason  of  sex. 

Section  2.     This  act  shall  take  effect  upon  its  passage. 
Approved  April  16,  1886. 

Chapter  401,  Acts  of  1887. 

Placing  Out  of  Children  by  Board  of  State  Charities. 

Section  1.  Whenever  the  overseers  of  the  poor  of  any  city  except 
the  city  of  Boston  fail  to  place  out,  according  to  the  provisions  of 
section  three  of  chapter  eighty-four  of  the  Public  Statutes  any  pauper 
child  in  their  charge  for  two  months  from  the  date  of  their  receiving 
such  child,  then  the  authority  vested  in  said  overseers  under  said 
section  three  may  be  exercised  by  the  State  board  of  lunacy  and 
charity,  to  the  exclusion  of  said  overseers,  and  under  the  authority 
of  the  State  board  of  lunacy  and  charity  such  child  shall  be  sup- 
ported by  the  city  in  the  same  manner  as  if  placed  out  by  its  over- 
seers of  the  poor,  and  shall  be  subject  to  the  visitation  of  the  board 
of  lunacy  and  charity,  its  officers  or  agents,  until  the  said  State  board 
of  lunacy  and  charity  shall  be  furnished  with  evidence  satisfactory  to 
said  board  that  the  overseers  will  properly  care  for  such  child  in 
accordance  with  the  provisions  of  said  section  three. 

Section  2.     This  act  shall  take  effect  upon  its  passage. 

Approved  June  13,  1887. 


1 98  APPENDIX 

Chapter  71,  Acts  of  1890. 

Increase  of  Burial  Allowance. 

Section  1.  Section  seventeen  of  chapter  eighty-four  is  hereby 
amended  by  striking  out  the  word  "ten"  in  the  thirteenth  line 
thereof,  and  substituting  therefor  the  word:  —  fifteen, —  and  by  strik- 
ing out  the  word  "five  "  in  the  fourteenth  line  thereof,  and  substitut- 
ing for  it  the  word  :  —  ten, —  so  that  the  last  clause  of  the  said  section 
shall  read  as  follows :  And  if  in  case  of  their  burial  the  expense  is 
not  paid  by  such  kindred,  there  shall  be  paid  from  the  treasury  of 
the  Commonwealth  fifteen  dollars  for  the  funeral  expenses  of  each 
pauper  over  twelve  years  of  age,  and  ten  dollars  for  the  funeral 
expenses  of  each  pauper  under  that  age. 
Approved  March  6,  1890. 

Chapter  90,  Acts  of  1891. 

Amendment  of  State  Temporary  Aid  Law  and  Shortening  Time  for 
Legal  Denial. 

Section  1.  Section  eighteen  of  chapter  eighty-four  of  the  Public 
Statutes,  relating  to  the  support  of  paupers  by  cities  and  towns,  is 
hereby  amended  by  inserting  after  the  word  "  time,"  in  the  fifth  line, 
the  words: — between  May  first  and  November  first,  or  for  a  longer 
period  than  eight  weeks  at  one  time  for  cases  notified  between  No- 
vember first  and  May  first,  or  to  a  greater  amount  than  one  dollar  a 
week  for  each  person,  or  five  dollars  a  week  for  each  family ;  and  the 
overseers  shall  in  every  such  case  give  immediate  notice  by  mail  to 
the  State  board  of  lunacy  and  charity,  which  board  shall  examine  the 
case  and  direct  as  to  the  continuance  of  such  aid,  or  removal  to  the 
State  almshouse,  or  to  some  place  out  of  the  State,  either  before  or 
after  removal  to  the  State  almshouse,  according  to  law.  A  detailed 
statement  of  expenses  so  incurred  shall  be  rendered,  and  after 
approval  by  the  State  board  such  expenses  shall  be  paid  from  the 
State  treasury. 

Section  2.  Section  twenty-nine  of  said  chapter  is  hereby  amended 
by  striking  out  the  words  "two  months"  in  the  second  and  third 
lines,  and  inserting  in  place  thereof  the  words  one  month :  so  that 
said  section  shall  read  as  follows :  — 

Section  twenty-nine.  If  such  removal  is  not  effected  by  the  last 
mentioned  overseers  within  one  month  after  receiving  the  notice,  they 
shall  within  the  said  one  month  send  to  one  or  more  of  the  overseers 
requesting  such  removal,  a  written  answer,  signed  by  one  or  more  of 
them,  stating  therein  their  objections  to  the  removal  ;  and  if  they  fail 
so  to  do  the  overseers  who  requested  the  removal  may  cause  the 
pauper  to  be  removed  to  the  place  of  his  supposed  settlement,  by  a 
written  order  directed  to  any  person  therein  designated,  who  may 
execute  the  same;  and  the  overseers  of  the  place  to  which  the  pauper 
is  so  sent  shall  receive  and  provide  for  him  ;  and  such  place  shall  be 


THE    SETTLEMENT    LAW    OF    i860  1 99 

liable  for  the  expenses  of  his  support  and  removal,  to  be  recovered  in 
an  action  by  the  place  incurring  the  same,  and  shall  be  barred  from 
contesting  the  question  of  settlement  with  the  plaintiffs  in  such 
action. 

Section  3.     This  act  shall  take  effect  upon  its  passage. 

Approved  March  17,  1891. 


Chapter  153,  Acts  of  1891. 

Extends  Time  for  Legal  Notice  of  State  Sick  Poor,  and  pro-rides  for  Support 
in  Hospitals. 

Section  twenty-six  of  chapter  eighty-six  of  the  Public  Statutes  as 
amended  by  chapter  two  hundred  and  eleven  of  the  acts  of  eighteen 
hundred  and  eighty-five  is  hereby  further  amended  by  striking  out, 
after  the  word  "section,"  in  the  second  line,  the  word  "after,"  and 
inserting  in  place  thereof  the  words:  —  within  five  days  next  before, — 
and  also  by  inserting  after  the  word  "  required,"  in  the  third  line,  the 
words  :  —  and  also  after  the  giving  of  such  notice  and  until  said  sick 
person  is  able  to  be  removed  to  the  almshouse, —  and  by  adding  at 
the  end  of  the  section  the  following: — provided  however,  that  when 
any  person  liable  to  be  supported  by  the  Commonwealth  shall  have 
received  assistance  in  a  hospital  maintained  for  the  care  of  the  sick, 
the  entire  expense  incurred  by  any  city  or  town  for  hospital  aid,  not 
to  exceed  five  dollars  a  week,  shall  be  reimbursed  to  said  city  or 
town  by  the  Commonwealth  in  the  manner  herein  provided, —  so  that 
said  section  shall  read  as  follows  :  — 

Section  twenty-six.  The  expense  incurred  by  a  city  or  town 
under  the  provisions  of  the  preceding  section,  within  five  days 
before  notice  has  been  given  as  therein  required,  and  also  after  the 
giving  of  such  notice  and  until  said  sick  person  is  able  to  be  moved 
to  the  almshouse,  shall  be  reimbursed  by  the  Commonwealth,  the 
bills  for  such  support  having  been  approved  by  the  State  board  or 
by  some  person  designated  by  it,  the  bills  so  audited  being  indorsed 
with  a  distinct  declaration  that  the  amount  charged  for  has  been  paid 
from  the  city  or  town  treasury :  provided  however,  that  when  any 
person  liable  to  be  supported  by  the  Commonwealth  shall  have 
received  assistance  in  a  hospital  maintained  for  the  care  of  the  sick, 
the  entire  expense  incurred  by  any  city  or  town  for  hospital  aid,  not 
to  exceed  five  dollars  per  week,  shall  be  reimbursed  to  said  city  or 
town  by  the  Commonwealth  in  the  manner  herein  provided. 

Approved  March  30,  1S91. 


Chapter  343,  Acts  of  1S91. 

Penalty  for  False  Answers  to  Authorities. 

Whoever  knowingly  and  wilfully  shall  make  in  writing  any  false 
representation  to  the  overseers  of  the  poor  of  a  city  or  town,  or  to 


200  APPENDIX 

their  agent,  or  to  the  State  Board  of  Lunacy  and  Charity  or  any  of 
its  agents,  for  the  purpose  of  causing  any  person  to  be  supported  in 
whole  or  in  part  as  a  pauper  by  any  city  or  town  or  by  the  Common- 
wealth, shall  be  punished  by  a  fine  not  exceeding  two  hundred 
dollars  or  by  imprisonment  in  the  house  of  correction  not  exceeding 
one  year.  & 

Approved  May  16,  1891. 


INDEX. 


Abatement  of  tax,  effect  of,  96. 

Abatement  of  tax  to  prevent  settlement.  See 
Gordon  V.  Sanderson,  92. 

Absence  from  State,  effect  of,  Greenfield  v. 
Buckland,  159  Mass.  491,  79. 

Absence,  involuntary,  defeats  settlement,  12 
Mass.  262,  85. 

Absence,  outside  State,  as  affecting  settle- 
ment, Fitchburg  v.  Atkol,  130  Mass.  370, 
101. 

Absence,  without  leave,  in  military  service, 
"3- 

Act  defeating  settlements  before  1794  (1870), 
»93- 

Act  defining  military  settlements,  1865,  191. 

Act  defining  settlements  before  1874,  chap. 
69,  Gen.  Stats.,  190. 

Act  defining  time  of  temporary  aid  to  State 
charges,  7. 

Act  defining  present  settlements,  chap.  83, 
Pub.  Stats.,  1. 

Act  tor  punishment  of  non-support,  107. 

Act  for  recovery  of  sums  paid  out  for  sup- 
port, 196. 

Act  for  reimbursement  for  sick  State  poor 
before  notice,  9. 

Act  for  temporary  aid  for  unsettled  poor 
(1877),  195-   .,. 

Act  giving  military  settlement  to  men  on 
State  quota,  193. 

Act  increasing  allowance  for  burials,  8. 

Act  nuking  assignments  on  quotas  confer 
settlement,  194. 

Act  making  1868  naturalization  law  retro- 
active. i87r,  194. 

Act  making  women  eligible  to  office  of  over- 
seers of  the  poor,  197. 

Act  of  1874,  judicial  application  of,  Worces- 
ter v.  Springfield,  127  Mass.  540;  Fitch- 
burg v.  Askby,  132  Mass.  495,  94-115. 

Act  of  1874,  provisions  of,  194. 

Act  of  1874,  provisions  of,  comment  on,  92. 

Act  of  1879,  giving  settlement  to  married 
women,  196. 

Act  providing  for  funeral  expenses  of  pau- 
pers, 198. 

Act  providing  for  support  of  unsettled  sick 
poor  in  hospitals.'g. 

Act  providing  for  woman  settlements  (1870), 
•93- 

Act  providing  conditions  for  removal  of  poor 
from  the  State,  193. 

Act  providing  for  placing  out  of  poor  chil- 
dren, 197. 

Act  punishing  for  false  answers  to  officials, 
199. 

Act  repealing  citizenship  as  a  condition  of 
settlement  (1868),  192. 

Act  reviving  settlement  lost  by  marriage,  194. 

Act  shortening  time  of  reply  to  notice    198. 


Act  striking  out  previous  residence  in  mili- 
tary settlement,  193. 

Act  must  accompany  declaration,  Brookfield 
v.  Warren,  128  Mass.  287,  87. 

Adams  v-  Ipswich,  116  Mass.  570,  explains 
effect  of  1871-74  acts,  124. 

Adoption  of  children,  164. 

Age  as  affecting  derivative  settlements,  73. 

Agencies  that  have  improved  tenements  of 
the  poor,  47. 

Aid  denial,  time  for  shortened,  198. 

Aid  does  not  defeat  settlement  when  un- 
known to  man,  87. 

Aid  given  pauperizes,  4. 

Aid  given  purposely  to  prevent  settlement, 
137,  M3- 

Aid,  lawful  charges  in  case  of,  157. 

Aid,  military  and  State  (act),  179-189. 

Aid,  notice  and  request  in  case  of,  62,  159. 

Aid,  notice  in  cases  of,  159. 

Aid  to  poor  should  be  in  small  amounts,  56. 

Amendments  of  1898  to  settlement  laws,  35, 
125. 

Amendments  of  1898,  construction  of,  131. 

Amendments  of  1898,  cutting  off  settlements, 
6. 

Amendments,  recent,  to  settlement  laws,  6,  9. 

Annexations  to  Boston,  45. 

Answers,  false,  to  poor  authorities  punished 
(act),  199. 

Applicants,  common  misrepresentations  of 
and  traits,  11,  17. 

Arbitration  in  settlement  disputes,  82. 

Ashland  v.  Marlboro,  106  Mass.  266,  mili- 
tary disability,  112. 

"  Assessment  due,"  necessary.  Plymouth  v. 
IVarekam,  126  Mass.  471;,  95. 

Assessment  without  payment  gains  by  fifth 
mode,  chap.  60,  Gen.  Stats.,  28,  121. 

Assignments  and  bounties  in  military  settle- 
ment, 40. 

Associated  Charities  in  poor  relief,  49. 

Attorney-General,  opinions  of,  173-178. 

Avoid  interruption  of  story,  visitor  should, 

Belling/tarn  v.  Hopkinton,    114    Mass.  553, 

comment  on  loss  ot  settlement,  124. 
Board  of  State   Charities  and  overseers  of 

the  poor,  relations  of,  126. 
Board   of    State    Charities  shall    place   out 

children  (act),  197. 
Boston,  annexations  to,  45. 
Boston,   changes  in   nationality   of   persons 

aided  in,  58. 
Boston,    improvement    in    dwellings   of   the 

poor  in,  46. 
Boston,  relief  societies  in,  48. 
Boston   v.   Mount    Washington,   139   Mass. 

15,  enlargement  of  tprovisious  of  military 

settlement,  107. 


202 


INDEX 


Boston,  visiting  field  enlarged,  45. 
Bounties  and  assignments  in  military  settle- 
ment, 40. 
Brockton  v.  Uxbridge,   138  Mass.  292,  dis- 
charge from  army  presumed  to  be  honor- 
able, 113. 
Brookfield  v.  II  'arren,  act  must  accompany 

declaration  of  purpose,  128  Mass.  287,  87. 
Brookfield  v.    li'arren,   no    obligation    to 

support  step-children,  72,  158. 
Burials   of   poor   persons,  act  increasing  al- 
lowance for,  8. 
Cambridge    v.     Boston,     130     Mass.     357, 

woman  settlement,  99. 
Cambridge  v  Paxton,  144  Mass.  520,  subse- 
quent desertion  from  army  prevents  effect 
of  honorable  discharge  before,  114. 
Chapter  eighty-four,  provisions  of,  154-163. 

Charges,  lawful,  in  case  of  aid,  157. 

Child,  aid  to,  effect  of  on  mother,  Gleason 
v.  Boston,  144  Mass.  25,  104. 

Child,  mother  not  criminally  liable  for  non- 
support  of,  7. 

Children,  adoption  of,  164. 

Children,  female,  emancipated  by  marriage, 
7.2- 

Children,  illegitimate,  adoption  of,  165. 

Children,  illegitimate,  settlement  of,  73. 

Children,  legitimate,  settlement  of,  70. 

Children,  poor,  to  be  placed  out,  197. 

Children,  step-,  limitations  of  settlement  of, 
71,  158. 

Citizenship  as  condition  of  settlement,  re- 
pealed 1868  (act),  192. 

Colored  people,  marriage  conditions  of,  20. 

Common  law  marriage,  Hyde  Park  v.  Can- 
Ion,  130  Mass.  505,  66. 

Cotnmonwealth  v.  Sudbury,  106  Mass.  268, 
repeaV  of  1868  of  citizenship  provision  not 
retroactive,  115. 

Continued  effect  of  settlement  statutes,  122. 

Court  decisions  necessarily  technical  in 
nature,  80. 

Court,  Supreme,  interpretation  of  1874  law, 
Fitchburg^.  Ashby,  132  Mass.  495,  94,  115. 

Coverture,  English  law  of,  64. 

Dana  v.  Petersham,  107  Mass.  598,  evi- 
dence of  payment  of  tax,  97. 

Decisions  of  court  have  effect  of  legislation 
in  military  settlement,  107. 

Declaration  of  intention  must  accompany  the 
act,  87. 

Denial,  time  of,  shortened  in  case  of  aid 
(act),  198. 

Derivative  settlements,  age  as  affecting,  73. 

Desertion  in  military  service,  113. 

Desertion  in  military  service,  proof  by  con- 
viction essential,  114. 

Details,  minute,  cannot  be  invented  by  im- 
postors, 21. 

Devens,  judge,  knowledge  of  military  settle- 
ment law,  39. 

Directory  as  legal  evidence,  16. 

Disability  in  military  service.  See  Ashland 
v.  Marlboro,  112,  119. 

Disability  in  military  service  that  gives  no 
settlement.  See  Ashland  v.  Marlboro, 
112. 

Disability,  cases  of  two  discharges  by  reason 
of,  113. 

Discharge,  dishonorable,  national  legislation 
reversing,  117. 


Discharge,  honorable,  desertion  after.  See 
Cambridge  v.  Paxton,  114. 

Divorce  as  affecting  settlement,  65,  169. 

Domestics  and  operatives,  settlement  of,  102. 

Domicil,  as  affecting  settlement,  35,  85. 

Domicil,  continuing  of,  84. 

Domicil,  ending  of,  85. 

Domicil  in  real  estate  ownership.  See 
Greenfield  v.  Buckland,  79,  87. 

Domicil  in  real  estate  lost  by  indefinite  ab- 
sence.    See  Greenfield  v.  Buckland,  79. 

Domicil,  means  of  proving,  n,  15. 

Domicil  of  operatives  and  domestics,  102. 

Domicil,  opinion  in  case  of  IV ilbraham  v. 
Ludlow,  99  Mass.  587,  104. 

Domicil  under  assumed  name,  86. 

Domicil,  when  terminated,  when  begun?  85. 

"  Duly  serving  one  year"  in  the  war,  109. 

Duties  of  visitors  among  the  poor,  42. 

Boston  \.  U'areham,  131  Mass.  10,  inference 
from  vote  of  town,  63. 

Emancipation  by  marriage,  72. 

Equitable,  settlement  provisions  are,  133. 

Equity  between  municipalities,  100. 

Estoppel  by  judgment,  155. 

Estoppel,  law' of,  Slielburne  v.  Buckland, 
124  Mass.  117,  162. 

Evidence  of  truth  of  story  is  in  unimportant 
details,  21. 

Field,  Chief  Justice,  adverse  opinion  of  in 
Fitchburg  v.  Ashby,  94. 

Fire,  the  1872,  a  great  benefit  to  Boston 
poor,  57. 

Fitchburg  v.  Ashby,  132  Mass.  495,  con- 
struction of  1874  settlement  law,  94,  115. 

Fitchburg  v.  Athol,  130  Mass.  370,  absence 
from  State  in  1874  as  affecting  settlement, 
101. 

Funeral  charges,  act  providing  for  increase 
in,  198. 

Gleason  v.  Boston,  144  Mass.  25,  responsi- 
bility of  mother,  104. 

Gordon  v.  Sanderson,  165  Mass.  375,  abate- 
ment to  prevent  settlement,  92. 

Greenfield  v.  Buckland,  159  Mass.  491, 
absence  from  State  for  indefinite  time 
defeats  settlement,  79. 

History  of  military  settlement  laws,  37-42. 

History  of  poor,  visitor  should  complete  at 
first  visit,  if  possible,  36. 

History  of  settlement  case  as  taken,  31. 

Hospitals,  act  for  support  of  unsettled  sick 
in,  9. 

Hospitals,  reimbursement  for  unsettled  sick 
in,  9. 

Houses  of  poor  much  improved  in  Boston, 
47- 

Houses  where  they  live,  poor  must  be  visited 
in,  52,  55. 

Husband,   settlement    by,   has    precedence, 

24. 
Hyde  Parky.  Canton,  130  Mass.  505,  valid- 
ity of  marriage  when  first  husband  possi- 
bly living,  66. 
Illegitimate   children,    intermarriage  of  par- 
ents of,  75. 

Illegitimate  children,  settlement  of,  73. 

Insane  asylums,  pauperization  does  not  fol- 
low support  in,  196. 

Intention  of  removal,  85. 

Investigate  history  toward  the  present  time, 
not  backward,  15. 


INDEX 


203 


Judgment,   estoppel    to    contest    settlement 

by.  '55- 
Lamson     v.    Neii'iuryport,     14    Allen    30, 

"  shall  aid  and  assist,  '  62. 
Lamson  v.  Newbury port ',  and  "  Notice  and 

Request,"  159. 
Law  of  1874,  provisions  of,  92. 
Law  presumes  that  a  proved  condition  I  nn- 
Laws,  when  take  effect,  108. 
Legitimate  children,  settlement  of,  70. 
Legitimate      children,      when     settlements 

change,  71. 
Limitation    of    settlement   of    step-children, 

7'.  72- 
Living,  not  the  dead,  settlements  for.     See 

Taunton  v.  Boston,  10,  26,  99. 
Lord,    Judge,    opinion    of    in     Taunton   v. 

Boston,  26,  72,  99. 
Majority,  when  attained,  73. 
Make  common  interest  (visitor),  14. 
Marriage  as  an  element  of  settlement,  23. 
Marriage,  common  law,  Hyde  Park  v.  Can- 
ton, 130,  Mass.  505.,  66. 
Marriage,  consideration  of  statutes,  167. 
Marriage,  emancipation  by,  72. 
Marriage,  invalid,  case  of,  23. 
Marriage  of  doubtful  validity,  Hyde  Park  v. 

Canton,  66. 
Marriage  of  parents  of  illegitimate  child,  75, 

7S. 
Marriage  relations  of  colored  people,  20. 
Marriage,  settlement  of  women  by,  64. 
Marriage,  to  determine  validity  of,  67. 
Marriage,  validity  of,  22. 
Marry  again,  permission  to,  65,  169. 
Methods  of  investigation  in  poor  relief,  11. 
Mi/ford  v.  Uxbridge,  130  Mass.  107  (service 

under  false  name  gives  settlement),  1 17. 
Military  records  imperfect,  40. 
Military   service,  absence  without  leave  in, 

"3- 
Military  service,  desertion  in,  114. 
Military  service,  disability  that  gives  no  set- 
tlement, 112. 
Military  settlement,  act  repealing  condition 

of  residence,  198. 
Military   settlement,    assignment   on   quota, 

194. 
Military  settlement,  assignment  and  bounty 

in,  40. 
Military   settlement  by   national   legislation 

reversing  record,  117. 
Military  settlement,  conditions  under  which 

gained,  37. 
Military  settlement,  decision   in   Netvbury- 

port  v.  Worthington,  132  Mass.  510  (when 

settlement  is  gained),  120. 
Military  settlement,  decisions  have  effect  of 

legislation,  107. 
Military  settlement,  disability  in,  tn. 
Military  settlement,  "  duly  served  one  year," 

109. 
Military  settlement   gained   by   assignment, 

194. 
Military  settlement,  general  remarks  on,  37. 
Military   settlement,    generous  provision    of 

law,  39. 
Military  settlement  given   to  men  on  State 

quota  (act),  193. 
Military  settlement  law,  history  of,  37,  38. 
Military  settlement  law  of  1865,  191. 


Military  settlement,  new  principles  in,  3S. 

Military  settlement,  no  age  limit  in 

Military  settlement,  statutes  construed  n-ir- 
rowly  by  towns,  39. 

Military  settlement,  two  discharges  for  dis- 
ability in,  1 13. 

Military  settlement  under  assumed  name, 
Milfordv.  Uxbridge,  130  Mass    107,  117. 

Misrepresentations  by  applicants  in  histories, 
•7- 

Mother  not  criminally  liable  for  non-sup- 
port (act),  7. 

Mother  pauperized  by  aid  (actl,  6. 

Mother,  when  legitimate  children  change 
settlement  with,  71,  72. 

Naturalization  as  condition  of  settlement  re- 
pealed, 1868,  192. 

Naturalization,  law  of  1868  not  retroactive, 
115. 

Naturalization,  law  of  1S71  retroactive.  Sec 
Worcester  v.  Springfield,  115. 

New  Bedford  v.  Hingham,  117  Mass.  445, 
"  Standing  in  need  of  immediate  relief," 
60. 

Neivburyfiort  v.  Worthington,  132  Mass. 
510,  military  settlement  in  case  of  minor 
children,  120. 

Non-support  of  family  punished  (act),  197. 

Notice  and  request  from  individuals,  159. 

Notice  in  case  of  aid,  154. 

Notice  of  aid,  time  for  denial  in,  shortened, 
198. 

Notice,  towns  may  recover  from  the  State 
for  aid  before,  9. 

Officials,  relations  of,  to  each  other,  100. 

Operatives  and  domestics,  domicil  of 

Opinions  of  Attorney-'  leneral,  173-178. 

Overseer  of  the  poor,  a  thrifty,  136. 

Overseers  of  the  poor  and  Hoard  of  State 
Charities,  relations  of,  126. 

Overseers  of  the  poor,  women  may  be  elected 
(act),  197. 

Ownership  of  real  estate,  settlement  bv,  78, 
81,87. 

Ownership  of  real  estate,  married  women  do 
not  gain  settlement  by.  See  Spencer  v. 
Leicester,  140  Mass.  224,  24,  65. 

Parents  of  illegitimate  children,  intermar- 
riage of,  75,  78. 

Pauperization  by  aid,  4. 

Paupers,  increased  allowance  for  burial  of, 
(act),  8. 

Payment  of  tax,  evidence  of.  See  Dana  v. 
Petersham,  97. 

Payment  of  tax,  what  three  taxes  in  five  will 
give  settlement?  See  Taunton  v.  Ware- 
ham  and  Plymouth  v.  Wareham,  31,  83. 

Permission  to  marry  again,  65,  169. 

Plymouth  v.  Ware/uim,  126  Mass.  475,  due 
assessment,  95. 

Poor  benefited  by  association  with  those  in 
better  circumstances  and  injured  by  herd- 
ing together,  58. 

Poor,  care  of  at  town  expense  or  as  State 
charges,  1:7. 

Poor,  improvement  in  houses  of,  47. 

Poor  may  be  sent  out  of  the  State  (act),  193. 

Poor  must  be  visited  at  home,  52,  55- 

Poor  relief,  former  conditions  of,  134. 

Poor,  the  benefit  of  the  1872  fire  to,  57. 

Population,  increase  of  in  Boston,  and 
changes,  45,  58. 


204 


INDEX 


Precedence  of  conflicting  statutes,  24. 
Private    societies,    their    relations    to    poor 

relief,  48. 
Proving  residence,  methods  of,  15. 
Provision  for  loss  of  former  settlement  (act), 

6,  193- 
Questions  of   settlement,   ask  forward,    not 

back,  15. 
Quota,  assignment  on,  gives  settlement,  194. 
Rawson  v.  Rawson,   156   Mass.    578,    court 

will  not  hear  evidence  to  annul  marriage 

when  one  party  dead,  70. 
Real  estate,  settlement  by  owning,  78,  87. 
Real  estate,  settlement  not  gained  by  mar- 
ried women.     See   Spencer  v.  Leicester, 

24,  65. 
Real  estate  on  boundary  line  between  towns, 

question  of  settlement  pending,  80. 
Records  of  military  service  imperfect,  40. 
Reimbursement  for  persons  moved  to  town 

of  settlement  within  thirty  days,  160. 
Relief   Association  of  Massachusetts,  good 

influence  of,  82,  154. 
Relief,  public,  former  conditions  of,  134. 
"  Relief,   standing  in  need   of  immediate." 

See  New  Bedford  v.  Hingham  and  Lam- 
son  v.  Newburyport,  60-159. 
Removal,  intention  of,  85. 
Removal  within  thirty  days  of  person  aided, 

160. 
Removal  of  person  to  another   State  (act), 

'93- 
Residence  constructive  for  purposes  of  domi- 

cil,  87,  174. 
Residence,  directory  evidence  of,  16. 
Residence,  means  of  proving,  14. 
Separation  of  masses  of  the  poor  a  benefit  to 

them,  58. 
Settlements  acquired  before  1794  and   i860 

by  amendment  of  1898,  lost,  except,  6,  193. 
Settlements,    act    defining    chap.    83,    Pub. 

Stats.,  1. 
Settlement   affected    by   absence    from    the 

State   in    1874.     See  Fitchburg  v.  Athol, 

IOT. 

Settlement  law  of  1874  construed  by  Su- 
preme Court  in  Fitchburg  v.  Ashby  and 
Worcester  v.  Springfield,  94,  115. 

Settlement  lost  only  by  gaining  another,  ex- 
cept, in,  193. 

Settlement,  marriage  as  an  element  of,  23. 

Settlement,  married  women  gain  none  by 
living  on  real  estate.  See  Spencer  v. 
Leicester,  24,  65. 

Settlement,  military,  assignment  on  quota  in, 
194. 

Settlement,  military,  carefully  construed  by 
towns,  39. 

Settlement,  military,  circumstances  under 
which  gained,  37. 

Settlement,  military,  court  decisions  have 
enlarged  its  scope,  107. 

Settlement,  military,  desertion,  charge  of, 
must  be  legally  proven,  114. 

Settlement,  military,  disability,  gained  by,  1 1 2, 
119. 

Settlement,  military,  general  remarks  on 
history  of,  37. 

Settlement,  military,  national  legislation 
reversing  the  record,  117. 

Settlement,  military,  new  principles  in,  38. 

Settlement,  military,  no  age  limit,  106. 


Settlement,    military,    not    gained   by   some 

kinds  of  disability.     See  A  shland  v.  Marl- 
boro, 112. 
Settlement,  military,  of  minor  children.    See 

Newburyport  v.  Worthington,  120. 
Settlement,  military,    provisions  of  the  law 

were  generous,  38-105. 
Settlement,   military,   service   for    one  year 

with  discharge,  120. 
Settlement,  military,  statute?  construed  care- 
fully by  the  towns,  39. 
Settlement  of  1874  retroactive  only  for  those 

unsettled,  194. 
Settlement  of  colored  people,  depending  on 

fact  and  validity  of  marriage,  to  be  care- 
fully investigated,  20. 
Settlement  of  illegitimate  children,  73. 
Settlement  of  legitimate  children,  70. 
Settlement  of  mother  when  child  aided.     See 

Gleason  v.  Boston,  104. 
Settlement  of  operatives  and  domestics,  102. 
Settlement   of    step-children,    limitation   of, 

71.  IS?. 
Settlement  of  women  by  five  years.     See 

Somerville  v.  Boston  and   Cambridge  v. 

Boston,  98. 
Settlement,  one  method  still  operative,  the 

fifth    in    chap.   69,    Gen.    Stats.,   omitted 

from  Pub.  Stats.,  28,  121. 
Settlement  prevented   by   aid,    Taunton   v. 

Wareham,  31,  83. 
Settlement  "  prevents   the   acquisition   of   a 

subsequent  settlement,"  124. 
Settlement,  provision  for  loss  of  former,  121. 
Settlement,  tax  paid  to  change,  90. 
Settlement  traced  under  difficulties,  145-153. 
Settlement,  what  payment  of  poll  taxes  will 

give?  88. 
Settlement,  when  must  tax  be  paid  to  gain  ? 

83. 
Sheffield  v.    Otis,    107   Mass.   282,   enlarges 

the  scope  of  military  settlement  law,  107. 
Shelburne  v.  Buckland,  124  Mass.  117,  gives 

the  law  of  estoppel,  162. 
Societies,  private,  in  Boston,  48. 
Soldiers,  certain,  excluded  from  benefits,  41. 
Somerville   v.    Boston,    120   Mass.   574,  de- 
cides that  act  of    1874  does  not  apply  to 

married  women,  98. 
South  Scituate  v.  Scituate,   155  Mass.  428, 

is  of  a  military  discharge  for  disability  not 

giving  settlement,  113. 
Spencer  \.  Leicester,  140  Mass.  224,  24-65. 
State,  absence  from  as  affecting  settlement. 

See  Fitchburg  v.  Athol,  101. 
State,  care  of  poor  and  reimbursement  by,  127. 
Statutes,  precedence  of,  24. 
Step-children,  status  of.     See  Brookfield  v. 

Warren,  71-158. 
Stougkton  v.    Cambridge,    165    Mass.    251, 

domicil    of    married    woman    away    from 

husband,  174. 
Suit  may  be  brought  for  support  of  persons 

aided  against  relatives  of  ability  'act',  196. 
Tatinton  v.  Boston,  131    Mass.  18,   opinion 

of    Judge   Lord,   settlements  are   for  the 

living,  and  not  for  the  dead,  10-26,  72-99. 
Taunton  v.    Wareham,   153  Mass.  192,  tax 

paid  in   municipal   year  of  aid  gives  no 

settlement,  31-S3. 
Tax,    abatement  of    to   prevent  settlement. 

See  Gordon  v.  Sanderson,  92. 


INDEX 


205 


Tax,  abatement  of,  effect  of,  96. 

Tax,  assessment  of  personal  gains,  settle- 
ment without  payment,  121. 

Tax  paid  to  change  settlement,  qo. 

Tax,  payment  of,  evidence  of.  See  Dana  v. 
Petersham,  97. 

Tax,  poll,  settlement  gained  by  paying,  82. 

Tax,  poll,  settling  cannot  be  paid  in  year  of 
aid,  Taunton  v.  Wareham,  31,  83. 

Technical  decisions  by  court,  80. 

Templeton  v.  IVinchendon,  138  Mass.  109, 
"  Fu  need  of  relief,"  61. 

Temporary  aid,  act  amending  chap.  84,  195. 

Temporary  aid,  law  of  1877,  195. 

Towns,  equity  between,  133. 

Towns,  present  relations  of  to  each  other, 
134- 

Towns,  votes  of,  may  lead  to  decisions  of 
settlement  against  them.  See  Easton  v. 
IVarehatn,  63. 

Untruthful  story  of  applicant,  do  not  inter- 
rupt, 18. 

Validity  of  marriage,  65. 

Visiting  by  volunteers,  50. 


Visitors,  duties  of,  42. 

Visitors,  paid  and  voluntary,  51. 

Visits  a  necessity,  52. 

Voluntary  visiting  among  the  poor,  48. 

Whole  name  of  applicant,  visitor  should  get, 

36. 
Wilbraham  v.  Ludlow,  99  Mass.  587,  domi- 

cil  of  laborers,  104. 
Woman  settlements,  act  of  1870  giving,  193. 
Woman  settlements,  act  of  1874,  194. 
Woman  settlements,  given  to  married  women 

by  1879  amendment,  196. 
Women  married   do  not  gain  settlement  by 

living  on  their  real  estate.     See  Spencer 

v.  Leicester,  24,65. 
Women    may   be   elected    overseers   of   the 

poor,  197. 
Women    settled    by    five    years'    residence. 

bee  SotnervilU  v.  Boston,  98. 
Women,   settlements  of,    defeated   by    187c 

law  revived  (act),   194. 
Women,  settlement  by  marriage,  64. 
Worcester  v.   Springfield,    127  Mass.   540, 

naturalization  law  of  187:  retroactive,  115. 


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